Mar0l|aU lEqmtg (UnUcrtton 
 
 mt of 
 
 IE. ai. MaraliaU. 2i-E- ^- 1394 
 
J 1924 084 260 771 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084260771 
 
EQUITY PRINCIPLES 
 
 A PRACTICAL TREATISE 
 
 PRINCIPAL RULES AND DOCTRINES OF 
 EQUITY JURISPRUDENCE 
 
 Intended Especially for Use in the State of West Virginia 
 
 AND APPLICABLE ALSO TO OTHER STATES 
 WHERE THE CHANCERY SYSTEM OBTAINS 
 
 BY 
 
 CHARLES E. HOGG 
 
 Author of "Hogg's Pleading and Forms" 
 
 THE W. H. ANDERSON CO. 
 
 I,AW BOOK PUBLISHERS 
 CINCINNATI, O. 
 
Ei.T>Htl 
 
 Copyright, 1900, 
 By Thb Robert Ci,arke Company. 
 
PREFACE. 
 
 The object of this treatise is to present a condensed and com- 
 prehensive view of the general principles underlying the juris- 
 diction of equity as recognized by the current of judicial opinion 
 and approved text-writers, giving preference in the citation of 
 cases to the decisions of the Supreme Courts of West Virginia 
 and Virginia, not ignoring, however, the adjudications of any 
 other courts in matters wherein their practical application could 
 be made available; and in many instances the use of the 
 latter has been exclusive, and especially is this so in the state- 
 ment of any rule or principle as to which the courts of the former 
 states have not been called upon to announce a precedent. 
 
 This work is not designed to afford any logical discussion or 
 consideration of the reasons and grounds upon which the rules 
 and principles are founded to which its author has here given 
 expression, but this matter has been left to the research of the 
 lawyer or student to be directed in the light of the numerous 
 cases cited in support of the text. 
 
 The author is deeply sensible of the truth, that in the execu- 
 tion of his labors as exemplified in the production of this work, 
 he has only been traversing a field in which are boldly displayed 
 the most enduring evidences of the former research and profound 
 ability of some of the greatest lawyers whose names have illu- 
 mined the pages of judicial history of England and America. A 
 claim, therefore, to originality is not attempted, further than that 
 which relates to the alphabetical arrangement of the subjects 
 treated of, and the presentation of some kindred and collateral 
 matters which belong to those that are distinctly the well-defined 
 subjects of equitable cognizance. 
 
 This treatise is not intended to supplant the many other valu- 
 able books heretofore written on equity jurisprudence, or to 
 supersede their use to any very considerable extent, but to pre- 
 
 (iii) 
 
IV PREFACB. 
 
 sent in succinct form this intricate and complex subject as an aid 
 to the practicing lawyer in the hours of his professional engage- 
 ment, and to enable the student to obtain a practical acquaintance 
 with its principal rules and maxims. 
 
 While "there is a general harmony in the American courts of 
 equity with one another, and with the English courts of chancery, 
 in the practice, procedure, and principles applied, and the prece- 
 dents emanating therefrom, may be safely referred to as authority 
 in cases lying within their jurisdiction, still, wlien the question is as 
 to the extent of the equitable jurisdiction possessed by courts of 
 one state, the determination of courts of another state as to the 
 extent of their own jurisdiction cannot, as a rule, be relied on as 
 furnishing an exact criterion for measuring the boundaries of the 
 jurisdiction in the former state, unless the statutory or consti- 
 tutional provisions governing the subject are substantially alike." 
 Hence, in the preparation of this work, we have given special 
 prominence to the jurisdictional extent of equity as administered 
 in West Virginia and Virginia, but based, as its fabric is in these 
 states, upon the rules and principles of the ancient English 
 Court of Chancery, the doctrines which this treatise embodies 
 will be found, it is believed, of practical utility wherever the ad- 
 ministration of equity jurisprudence obtains, as contradistinguished 
 from that part of the law dealing with proprietary rights, strictly 
 determinable in a legal forum. 
 
 Although the plan and scope of the work designedly deal with 
 abstract equitable right, there will be found many features in it 
 presenting the method of the practical administration of this 
 right. It will not be inferred from this, however, that the au- 
 thor has attempted to blend any considerable portion of equity 
 procedure with a statement of those principles which define the 
 limits and prescribe the rules of equity jurisdiction. This be- 
 longs to another branch of the law and must be deferred to a 
 separate commentary on the subject. The Author. 
 
 Point Pi<easant, W. Va., March i, ipoo. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 EQUITY PRINCIPLES AND JURISDICTION. 
 
 ? I. General observations I 
 
 2. Equity — Definition and nature thereof 3 
 
 3. General rules of equity jurisdiction 4 
 
 4. Classification of equity jurisdiction 8 
 
 CHAPTER II. 
 
 CONCURRENT JURISDICTION. 
 
 ABATBMBNT. 
 I 5. Cases in which abatement may be proper 10 
 
 6. When a sale by the acre, and when in gross 14 
 
 7. Fraud of the vendor affecting the rights of the vendee — abate- 
 
 ment in such case 16 
 
 8. Deficiency in quantity of land mentioned in the deed, arising 
 
 from mistake 18 
 
 9. Unliquidated damages not the subject of abatement 18 
 
 10. Cases wherein all the purchase-money has been paid 19 
 
 11. Evidence of the vendor's representations as to the quantity of 
 
 land sold 20 
 
 12. Extent of deficiency in quantity of land sold, to authorize an 
 
 abatement. 21 
 
 13. Payment for excess of land beyond quantity called for in the con- 
 
 tract or deed — when may be required by the vendor 21 
 
 14. Rule for determining the amount of abatement, or the compensa- 
 
 tion for the excess in the quantity of land sold 2? 
 
 CHAPTER III. 
 
 ACCIDENT. 
 
 i 15. Definition of accident, and the cases wherein equity will grant 
 
 relief therefrom 24 
 
 153. Limitations to relief in equity from accident 25 
 
 (v) 
 
yi CONTENTS. 
 
 CHAPTER IV. 
 
 ACCOUNT. 
 
 ; i6. Account, and when equity will afiford relief in the matter thereof. 26 
 
 i6a. Matters of account as incident to suits in equity 29 
 
 i6b. The plea of stated account 3° 
 
 CHAPTER V. 
 
 AGENCY. 
 
 I 17. Agency— the cases thereunder giving rise to equity jurisdiction. 31 
 
 18. Who may act as agent 32 
 
 19. Duty of agent towards principal 32 
 
 20. Attomeys-at-law and their clients 33 
 
 CHAPTER VI. 
 
 ARBITRATION AND AWARD. 
 I 21. AVho may submit to arbitration 35 
 
 22. Mode of submission to arbitration 35 
 
 23. Submission by virtue of the statute 36 
 
 24. All matters pertaining to the submission should be presented to 
 
 the arbitrators 37 
 
 25. Power and authority of the arbitrators under rule of court 37 
 
 26. Time within which an award mtist be made 38 
 
 27. The revocation of a submission to arbitration 38 
 
 28. No form necessary in submitting to arbitration under an order of 
 
 court 39 
 
 29. The award 40 
 
 30. The return of the award into court 41 
 
 31. The suflSciency and validity of the award , 42 
 
 32. The setting aside of the award 43 
 
 33. Illustrative instances of the sufSciency and insufficiency of causes 
 
 for setting aside an award 45 
 
 34. Right of fiduciaries to submit matters in their charge to arbitra- 
 
 tion 47 
 
 CHAPTER VII. 
 
 ATTACHMENT. 
 ? 35. Origin and history of equity jurisdiction in attachment cases 49 
 
 36. The extent of equity jurisdiction in cases of attachment 52 
 
 37. Whether jurisdiction in equity should be shown on the face of 
 
 the bill in attachment cases g j 
 
 38. Of the grounds for an attachment ; 53 
 
 39. Of the affidavit for an attachment 54 
 
CONTENTS. Vii 
 
 ! 40. Of the order and return of the attachment 68 
 
 41. Of the levy of the attachment 70 
 
 42. Of the garnishee in attachment 71 
 
 43. Of the defense to the attachment 75 
 
 44. Of the decree to be rendered upon the attachment 76 
 
 CHAPTER VIII. 
 CANCELATION OF WRITTEN INSTRUMENTS. 
 
 j 45. Grounds of equity jurisdiction in this class of cases 79 
 
 46. Removing cloud from title to real estate 8i 
 
 47. Illustrations of the exercise, and refusal of, equity jurisdiction 
 
 relating to cloud on title to real estate 86 
 
 48. Cancellation of instruments because of fraud 88 
 
 ,49. Cancellation of instruments because of mistake 89 
 
 50. Cancellation of instruments because of fraudulent conceal- 
 
 ment 90 
 
 51. Cancellation of contracts because of inadequacy of considera- 
 
 tion 90 
 
 52. Cancellation of instrmnents because of misrepresentation 92 
 
 53. Cancellation of instrmnents because of undue influence 92 
 
 54. Cancellation of instruments because of the fiduciary relationship 
 
 of the party in whose interest it operates 95 
 
 55. Cancellation of instrument because of mental incapacity of party 
 
 executing it 96 
 
 56. Presumption as to sanity 97 
 
 57. What is a sufficient mental soundness to make a valid contract or 
 
 will 97 
 
 58. Cancellation of contracts and agreements on the ground of in- 
 
 fancy 99 
 
 59. Cancellation of contracts and other instruments on the ground of 
 
 drunkenness 99 
 
 ■60. Party asking cancellation or rescission of instrument must be in 
 
 situation to place the other in statu quo 100 
 
 61. Laches or fraud as a defense to the rescission or cancellation of 
 
 contracts loi 
 
 CHAPTER IX. 
 
 CONFUSION OF BOUNDARIES. 
 
 62. The origin and nature of equity jurisdiction in matters of bound- 
 
 aries of real estate 104 
 
 62a. What must be shown to maintai;^ a bill to settle disputed 
 
 boundaries •. 105 
 
Viii CONTENTS. 
 
 CHAPTER X. 
 
 CONTRIBUTION. 
 J 63. The doctrine of contribution and the principle upon which it 
 
 rests lofr 
 
 64. Contribution between co-sureties 107 
 
 65. Contribution between partners 107 
 
 66. Contribution amongtenants in conunon 108 
 
 67. Contribution among creditors '. 108 
 
 68. Contribution among part owners of vessels, and other owners of 
 
 property 109- 
 
 69. Contribution among wrongdoers 109 
 
 70. Contribution among joint obligors no 
 
 71. Contribution among devisees and legatees no 
 
 CHAPTER XI. 
 
 CORPORATIONS. 
 I 72. When affairs of a corporation may be administered by a court of 
 
 equity 112 
 
 73. As to the dissolution of corporations 113, 
 
 74. Dissolution of a corporation by statute in a court of equity 114 
 
 75. As to collection of unpaid stock 115. 
 
 76. When stockholders may sue in relation to corporate property and 
 
 rights 116 
 
 77. Suit by stockholders to cancel stock subscriptions 118 
 
 78. As to an act ultra vires of a corporation hqh 
 
 CHAPTER XII. 
 
 CURTESY. 
 
 79. When husband entitled to curtesy in wife'a lands 121 
 
 How husband may be barred of his curtesy I2v 
 
 80. 
 
 CHAPTER XIII. 
 
 DOWER. 
 
 81. Of what a widow may be endowed j2c 
 
 82. The husband's estate of inheritance need not be indefeasible to 
 entitle the widow to dower J2g 
 
 As to widow's right of dower in partnership lands 129, 
 
 84. As to widow's right to dower in lands subject to vendors' and 
 
 other liens 
 
 . 129 
 
 85. As to right of dower in growing crops 
 
 86. As to dower in mineral lands 
 
 87. As to dower in wild and uncultivated lands 1^° 
 
 83. 
 
i 88, 
 89, 
 90 
 91 
 92 
 
 93 
 
 94. 
 95 
 96 
 
 97 
 98, 
 
 CONTENTS. IX 
 
 As to dower in equitable estates 132 
 
 As to dower in estates in remainder and reversion 133 
 
 As to dower where husband holds the naked legal title 134 
 
 Who may have dower assigned 134 
 
 A gross sum in lieu of dower in kind 135 
 
 Commutation of dower; the effect thereof upon the fee of the 
 
 land 136 
 
 Should be no sale of land until dower therein is assigned 137 
 
 Bar to dower by wife's joinder with husband in deed 137 
 
 Bar to dower by a provision in lieu thereof 137 
 
 Bar of dower by lapse of time 139 
 
 Bar of dower where wife deserts husband and lives apart from 
 
 him 139 
 
 CHAPTER XIV. 
 
 BQUITABtB ESTOPPEI<. 
 
 J 99. Nature and definition of equitable estoppel 141 
 
 100. When estoppel applicable to municipal corporations 145 
 
 101. The law of estoppel applies to private corporations 146 
 
 102. The law of estoppel as applied to married women 148 
 
 103. Infants, as a rule, not subject to the law of estoppel 151 
 
 104. Doctrine of estoppel cannot be invoked when in contravention of 
 
 law or public policy 153 
 
 105. Cases illustrative of the doctrine of estoppel 154 
 
 106. Certainty and mutuality of estoppel 159 
 
 CHAPTER XV. 
 
 EXECUTORS AND ADMINISTRATORS. 
 i 107. The appointment and qualification of personal representa- 
 tives 160 
 
 108. Who may be appointed an executor or administrator 162 
 
 109. The powers of executors and administrators 165 
 
 no. The powers of an executor under a will 169 
 
 iioa. The duties of personal representatives 171 
 
 111. What to be charged as assets to the personal representative. ... 174 
 
 112. What the law r^ards as a devastavit 176 
 
 113. The investment by the executor of the estate of his testator 178 
 
 114. Stating the accounts of personal representatives and the charge 
 
 of interest therein 179 
 
 115. Payment of legacies by the personal representative 181 
 
 115a. As to payment of interest on legacies 182 
 
 116. The different kinds of legacies 186 
 
 ii6a. When real estate charged with payment of legacies 188 
 
 117. The order of the payment of debts and claims by the personal 
 
 representative 190 
 
X CONTENTS. 
 
 i 1 17a. The order in which the property of a testator should be applied in 
 
 the payment of his debts I94 
 
 118. The commission of personal representatives 195 
 
 119. Surcharging and falsifjdng the accounts of personal representa- 
 
 tives 197 
 
 CHAPTER XVI. 
 
 FIDUCIARIBS. 
 ? 119a. Executors de son tort 198 
 
 120. Who are fiduciaries 201 
 
 121. When a committee of an insane person may be appointed 202 
 
 122. Bond and qualification of a committee 203 
 
 122a. The legal effect of a judicial finding of lunacy 204 
 
 123. The powers of the committee of an insane person 205 
 
 124. Of the leasing and sale of the lands of infants, married women 
 
 and insane persons 207 
 
 125. The application and investment of the proceeds arising from the 
 
 sale of property of persons under disability 211 
 
 126. The effect of a sale and its confirmation of property belonging to 
 
 one under disability 212 
 
 127. The transfer of the property of a minor or insane person to 
 
 another state or country ^ 212 
 
 128. I/iability of fiduciary for debts lost or improperly paid 214 
 
 129. In the absence of statute a fiduciary cannot resign his trust 214 
 
 130. Receivers, the different kinds, and how appointed 214 
 
 131. The duties of a general receiver of the circuit court 215 
 
 132. The receiver's account and his report to the court 216 
 
 133. The powers of the general receiver over stocks and securities 217 
 
 134. The liability of the general receiver for funds that may come 
 
 into his hands 217 
 
 135. The bond of the general receiver and the giving of new bonds 
 
 by him 217 
 
 136. When interest is payable on loans made by the general re- 
 
 ceiver, when to be compounded, and the receiver's compensa- 
 tion 218 
 
 137. When the court will appoint a special receiver 218 
 
 138. niiastrative instances of the court's refusal to appoint a special 
 
 receiver, and those wherein appointments have been made. . . 221 
 
 139. Appointment of special receivers while the case is pending in 
 
 the court of appeals 225 
 
 140. How a special receiver may be appointed 225 
 
 141. AVhen notice should be given as to the appointment of a special 
 
 receiver 227 
 
 142. Rights and powers of a receiver as to bringing suits 228 
 
 143. When and where the receiver may be sued 230 
 
 144. The general rights, powers and duties of a special receiver 231 
 
 145. Who should be appointed a special receiver 2-14 
 
CONTENTS. XI 
 
 i 146. The compensation of the receiver 235 
 
 147. The accounts of the receiver 236 
 
 148. The settlenaent of the accounts of general and special receivers. 237 
 
 149. List of the fiduciaries to be kept by the clerks of the circuit and 
 
 county courts 239 
 
 150. Inventory of the property coming into the hands of all fiduci- 
 
 aries to be returned to the clerk of the court appointing the 
 fiduciary 239 
 
 151. Return of inventory of sales made by a fiduciary to the clerk. . 240 
 
 152. Liability of fiduciary for debts lost or improperly paid, further 
 
 considered 241 
 
 153. The rendition and settlement of accounts of fiduciaries 242 
 
 154. The penalty for the failure of a fiduciary to settle his accounts 
 
 as required by law 246 
 
 155. Bond of fiduciary to be reported on by a commissioner 247 
 
 156. Order annulling and revoking the powers of a fiduciary 248 
 
 157. The giving of a new bond by a fiduciary and the effect thereof. . 248 
 
 158. Commissioner's duty in reference thereto, as to accounts before 
 
 him for settlement 249 
 
 159. The duty of the court as to the report of a commissioner settling 
 
 the accounts of a fiduciary 251 
 
 160. Surcharging and falsifying the accounts of a fiduciary 251 
 
 161. When court will order the funds in the hands of a fiduciary, 
 
 after the coming in of the report of a commissioner, to be 
 invested 253 
 
 162. Disposal of securities standing in the name of a fiduciary, upon 
 
 his death, or whose powers have been revoked 253 
 
 163. Power and duty of the court after the confirmation of the report 
 
 of the accounts of any fiduciary 253 
 
 164. How payment of legacy, or share of distributee, by a personal 
 
 representative may be enforced by the court 254 
 
 165. How order of court as to matters concerning fiduciaries may 
 
 be enforced 155 
 
 CHAPTER XVII. 
 
 FRAUD. 
 
 166. Definition and kinds of fraud 356 
 
 167. Equity jurisdiction in matters of fraud 257 
 
 168. What misrepresentations amount to fraud 258 
 
 169. The expression of mere matters of opinion will not be treated 
 
 as fraud 260 
 
 170. When concealment amounts to fraud 261 
 
 171. Fraud arising from contracts made with persons of weak or dis- 
 
 ordered intellect, or laboring under any form of mental in- 
 capacity 262 
 
 172. The classification of constructive fraud 264 
 
 173. Acts treated as fraudulent because against public policy 264 
 
xii CONTENTS. 
 
 J 174. Constructive frauds which arise from the abuse of some pecu- 
 liar, confidential, or fiduciary relation existing between the 
 
 parties 268 
 
 174a. Constructive frauds as being unconscientious or injurious to the 
 
 rights of third parties 270 
 
 175. Cases illustrative of fraud 270 
 
 176. Right to rescind for fraud must be exercised within a reason- 
 
 able time 272 
 
 177. The allegations in the bill, to rescind an instrument on the 
 
 ground of fraud , 273 
 
 178. Relief against judgments and decrees in equity on the gfround 
 
 of fraud 274 
 
 179. Defense to the charge of fraud 275 
 
 180. Of the evidence necessary to sustain the charge of fraud 277 
 
 CHAPTER XVIII. 
 
 FRAUDUI^SNT CONVEYANCBS. 
 
 J 181. Origin and history of the jurisdiction of courts in cases of 
 
 fraudulent conveyances 280 
 
 182. Our present statute against fraudulent conveyances, and its con- 
 
 struction 280 
 
 183. Who may sue to set aside a fraudulent conveyance 283 
 
 184. Who should be parties defendant in a suit to Set aside a fraudu- 
 
 lent conveyance 284 
 
 185. When coiurt will set aside a deed as fraudulent 284 
 
 • 186. What the plaintiff's bUl must allege, to authorize the court to 
 
 entertain his application for relief against a fraudulent con- 
 veyance 286 
 
 187. Proof of fraud, and as to the party upon whom the burden 
 
 thereof rests 288 
 
 188. Principles relating to the evidence in cases of fraudulent con- ' 
 
 veyances 289 
 
 189. What conveyances fraudulent per se 292 
 
 igo. As to the knowledge of the grantee in the conveyance of the 
 
 grantor's fraudulent intent 295 
 
 191. The proof of the consideration for the conveyance 296 
 
 192. Voluntary conveyances, and when they may be assailed by the 
 
 creditors of the grantors 207 
 
 193. Conveyances made to the wife during coverture 299 
 
 194. Improvements made by the husband upon the wife's land 299 
 
 195. As to ante-nuptial settlements ,00 
 
 196. As to post-nuptial settlements ,qq 
 
 196a. Agreements of separation between husband and wife 301 
 
 197. When a conveyance will stand as an indemnity for the consid- 
 
 eration, advanced by the grantee, though the same may be 
 set aside as to creditors ,q, 
 
 198. As to purchasers from a fraudulent grantor or grantee 304 
 
CONTENTS. XIU 
 
 I 199. Ivien acquired on property of frandulent debtor by creditor as- 
 sailing same as fraudulent 304 
 
 200. As to a preference among creditors of an insolvent 305 
 
 201. When an instrument or act creating a preference among credi- 
 
 tors must be assailed by the unsecured debtor 306 
 
 202. Transactions to which the statute forbidding preferences does 
 
 not apply 307 
 
 203. The effect and policy of the law forbidding an insolvent debtor 
 
 to prefer any of his creditors 307 
 
 CHAPTER XIX. 
 
 GIFTS AND ADVANCEMENTS. 
 
 I 204. The essentials of a valid gift , 310 
 
 205. The delivery of the subject-matter of the gift 311 
 
 206. Constructive delivery of a gift 311 
 
 207. Gifts of promissory notes, checks and the like 312 
 
 208. As to gifts causa mortis 313 
 
 209. As to gifts between near relatives and to fiduciaries 314 
 
 210. As to what constitutes possession by the donee 315 
 
 211. The evidence required to establish a gift 316 
 
 212. When a court of equity will aid in rendering gifts effective 317 
 
 213. What constitutes an advancement 318 
 
 214. How and to whom advancements are chargfeable 318 
 
 215. The evidence to show the existence of an advancement 319 
 
 CHAPTER XX. 
 
 GUARDIAN AND WARD, 
 j 216. The appointment and qualification of guardians 321 
 
 217. Investments by the guardian of the ward's estate 323 
 
 218. Guardian is entitled to the custody of his ward, and the pos- 
 
 session, care and management of his estate 324 
 
 219. Disbursement allowed the guardian in his dealings and transac- 
 
 tions with the ward 327 
 
 220. The keeping and stating of the guardian's accounts 330 
 
 221. The guardian's compensation 333 
 
 222. The personal liability of guardians 333 
 
 223. Jurisdiction in equity over the accounts and dealings of 
 
 guardians 334 
 
 224. Surcharging and falsifying the accounts and settlements of 
 
 guardians 335 
 
 225. The termination of the guardianship 335 
 
 CHAPTER XXI. 
 
 INFANCY. 
 I 226. Jurisdiction in equity as to infants 338 
 
dv CONTENTS. 
 
 227. As to the power of infants to make contracts 338 
 
 228. What are necessaries within the meaning of the law 338 
 
 229. As to the disabilities of infancy 339 
 
 230. When and how an infant may set aside a decree 340 
 
 230a. The parent's emancipation of his child 341 
 
 f CHAPTER XXII. 
 
 INJUNCTIONS. 
 i 231. Definition and classification of injunctions 344 
 
 232. When a mandatory injunction will be issued 545 
 
 233. Principles underlying the court's jurisdiction in injunction 
 
 cases 347 
 
 234. Classes of cases wherein relief by injunction may be afforded. . 348 
 
 235. Injunctions to prevent irreparable wrong 348 
 
 236. Injunctions to restrain waste 349 
 
 237. Waste and who maintain injunctions against its commission 350 
 
 238. Distinction between waste and trespass as applicable to in- 
 
 junctions 351 
 
 239. Cases wherein injunctions will be awarded to stay waste 352 
 
 240. Injunctions to prevent trespass 354 
 
 241. AVhat the bill must allege, to obtain an injunction against tres- 
 
 pass 355 
 
 242. Cases wherein injunction to tresspass will lie 355 
 
 243. Injunctions to prevent nuisances 356 
 
 244. Definition and kinds of nuisance 356 
 
 245. Injunctions against private nuisances 357 
 
 246. Cases wherein injunctions to restrain nuisances have been 
 
 awarded 358 
 
 247. Injunctions to enjoin sales under executions 360 
 
 248. Injunctions enjoining trust sales 361 
 
 249. Power of trustee under deed of trust 361 
 
 250. Specific cases illustrating the use of injunctions to prevent sales 
 
 of property under trust deeds 363 
 
 251. Injunctions to restrain the infringement of patents and copy- 
 
 rights 364^ 
 
 252. When preliminary injunction will be granted to restrain the in- 
 
 fringement of patents and copyrights 365 
 
 253. When previous trial at law necessary before awarding an in- 
 
 junction to restrain the infringement of patents and copy- 
 
 "g'**^ .-365 
 
 254. Where the patent has expired and the infringement has ceased. 366 
 
 255. Injunctions in cases of municipal corporations 367 
 
 256. Enjoining municipal ordinances ,6y 
 
 257. Injunctions to prevent the illegal creation of indebtedness by 
 
 municipal and other public corporations ~(,g 
 
 258. When a municipality may resort to the use of an injunction as 
 
 a remedial process ,g_ 
 
CONTENTS. XV 
 
 259. Injunctions in cases of sureties , 370 
 
 260. When equity will indemnify the surety against the action of the 
 
 principal 370 
 
 261. Injunctions in cases of partners 371 
 
 262. Cases wherein injunctions will or will not be allowed by or 
 
 against partners 372 
 
 263. Injunctions to restrain the collection of illegal taxes 372 
 
 264. Injunctions to restrain the taking of private property for public 
 
 use 374 
 
 265. Injunctions against towns as to taking land for streets and side* 
 
 walks 375 
 
 266. Injunctions against railroad companies for appropriating land to 
 
 right of way 376 
 
 267. When court will award an issue to determine the quantum of 
 
 damages when land has been taken 376 
 
 268. Injunctions to restrain the enforcement of judgments and de- 
 
 crees 377 
 
 269. Injunctions to judgments because of after-discovered evidence.. 378 
 
 270. Injunctions to judgments in cases wherein no appeal can be 
 
 taken 379 
 
 271. Cases illustrating the use of injunctions enjoining judgments.. 379 
 
 272. Injunctions against decrees in chancery 380 
 
 273. Injunctions to enjoin the prosecution of actions at law 381 
 
 274. As to equitable and legal defenses 382 
 
 275. Injunctions to prevent a multiplicity of suits 383 
 
 276. Cases wherein equity will interpose to prevent a multiplicity of 
 
 suits 383 
 
 277. Injunctions to enjoin an action or proceeding to make set-off 
 
 available 384 
 
 278. Injunctions as to trades-unions and strikes 384 
 
 279. Injunctions as to boycotts 387 
 
 280. Illustrative cases of the use and refusal of injunctions 389 
 
 281. When and by whom injunctions may be awarded 390 
 
 282. When an injunction takes effect 391 
 
 283. Of the motion to dissolve an injunction 392 
 
 284. When an injunction wiU be dissolved 392 
 
 285. Of the effect of the dissolution of an injunction 394 
 
 CHAPTER XXIII. 
 
 JUDGMENTS AND DECREES. 
 
 286. As to the form of a judgment or decree , 395 
 
 287. Interlocutory and final judgments and decrees 396 
 
 288. When a decree may be entered in a cause 399 
 
 289. When a decree between co-defendants may be entered 400 
 
 290. When judgment or decree will be set aside 401 
 
xvi CONTENTS. 
 
 CHAPTER XXIV. 
 
 JUDICIAL SALES. 
 
 ? 291. The rule of caveat emptor applies to judicial sales 405 
 
 292. When a judicial sale will be set aside 404. 
 
 293. The rights and obligations of a purchaser at a judicial sale 406 
 
 294. Upset bids 409 
 
 295. What constitutes a bid at a judicial sale 410 
 
 296. Withdrawing, rejecting and assigning bids made at a judicial 
 
 sale 410 
 
 297. The terms of a judicial sale, and whether such sale shall be pub- 
 
 lic or private 412 
 
 CHAPTER XXV. 
 
 LACHES. 
 i 298. what is laches and some rules determining its application 415. 
 
 299. When laches not imputable 418 
 
 300. How the defense of laches may be raised 418 
 
 300a. The plaintiff 's bill may show due excuse for his laches 419 
 
 CHAPTER XXVI. 
 
 LOST INSTRUMENTS. 
 
 I 301. Jurisdiction in cases of lost instruments 421 
 
 302. The bill in suits on lost instruments 422 
 
 303. What must be shown to maintain suit on a lost instrument 422 
 
 304. Suits on lost negotiable instruments 422 
 
 305. Equity will set up a lost will 423 
 
 CHAPTER XXVII. 
 
 MARRIED WOMEN. 
 
 i 306. Separate property of married women; how created, and nature 
 
 thereof 424 
 
 307. Contracts of married women 427 
 
 307a. Contracts between husband and wife 430 
 
 308. The earnings of a married woman 431 
 
 309. Carrying on business by a married woman 431 
 
 310. Insurance of married woman on life of husband — her patents 
 
 for invention and her bank deposits 434 
 
 311. Property held or conveyed in trust for married women 435 
 
 312. Marriage settlement deeds 436 
 
 313. The right of a married woman to dispose of her property 436 
 
 314. Suits by and against married women 438. 
 
CONTENTS. XVll 
 
 CHAPTER XXVIII. 
 
 THS MARSHALING OF ASSETS AND SECURlTrES. 
 ? 315. What is meant by the marshaling of assets 440 
 
 316. The limitation of the doctrine of marshaling of assets 441 
 
 317. Instances wherein the doctrine of marshaling of assets and se- 
 
 curities is applied 441 
 
 CHAPTER XXIX. 
 
 THE MAXIMS OF EQUITY. 
 i 318. The extent and classification of maxims in equity 444 
 
 319. Equity ■will not, by reason of a mere technical defect, snfier a 
 
 wrong to be without a remedy 445 
 
 320. Equity follows the law 447 
 
 321. Where there are equal equities, the first in time will prevail. . . . 447 
 
 322. Where there is an equal equity, the law must prevail 448 
 
 323. He who seeks equity must do equity 449 
 
 324. He who comes into equity must come with clean hands 450 
 
 325. Equity aids the vigilant 451 
 
 326. Equality is equity 451 
 
 327. Equity looks rather to the intent than to the form 451 
 
 328. Equity looks on that as done, which in good conscience ought 
 
 to be done 453 
 
 329. Equity imputes an intention to fulfill an obligation 455 
 
 330. Equity acts in personam 456 
 
 331. Equity acts specifically 457 
 
 332. Other TtiaTHms — a. right of action cannot arise out of fraud 457 
 
 333. Where both parties are equally in the fault, the condition of the 
 
 defendant is preferable 458 
 
 334. A simple recommendation does not bind 459 
 
 335. Fraud and deceit should excuse no man 461 
 
 336. Ignorance of the law excuses no one 461 
 
 CHAPTER XXX. 
 
 MISTAKE. 
 i 337- Definition of mistake and grounds of equity jurisdiction therein. 463 
 
 338. As to relief where there has been a mistake at law 463 
 
 339. Illustrations of the principle that mistake of law will not be 
 
 remedied 4^4 
 
 340. As to corrections of mistakes of fact 465 
 
 341. Relief in cases of mistakes in cases of written instruments 465 
 
 342. Cancellation of deed or other instrument because of mistake. . . 466 
 
 343. Correction of mistakes in contracts of insurance 467 
 
 344. Correction of a mistake of the scrivener who drafted the writing. 467 
 
xviii CONTENTS. 
 
 I 345. As to the use of parol evidence for the correction or reformation 
 
 of a written instrument 4^* 
 
 346. Money paid under a mistake of fact 468 
 
 347. How mistake should be alleged in the bill 468 
 
 CHAPTER XXXI. 
 
 MULTIPLICITY OF SUITS. 
 } 348. Grounds and classification of equity jurisdiction to prevent a 
 
 multiplicity of suits 4^ 
 
 349. The prevention of a multiplicitly of suits, arising out of com- 
 
 munity of interests or conflicting interests, as to the same 
 fund 469 
 
 350. The doctrine preventing reiterated litigation between the same 
 
 parties and concerning the same matter 470 
 
 350a. Equity administers full relief to avoid multiplicity of suits. . . . 470 
 
 CHAPTER XXXII. 
 
 NEW TRIAL. 
 J 351. Principles determining equity jurisdiction as to new trial 472 
 
 352. In granting a new trial equity does not investigate the legally 
 
 of the judgment at law 476 
 
 353. New trial because of after-discovered evidence 476 
 
 354. The allegations of the bill as to after-discovered evidence 477 
 
 355. How equity affords relief in matters of new trial 477 
 
 CHAPTER XXXIII. 
 
 NOTICE AND RECORDATION. 
 i 356. Origin and scope of our recording acts Ajg 
 
 357. Who are purchasers within the meaning of the recording acts. 481 
 
 358. Who are creditors within the meaning of the recording acts. . . . 482 
 
 359. The property and interests to which the recording acts do not 
 
 apply 483 
 
 360. The character of writing that may be properly recorded 484 
 
 361. Where deed or other instrument must be recorded 486 
 
 362. What is a sufficient recordation of a writing under our record- 
 
 ing a'^te 487 
 
 363. Notice by subsequent purchasers before the recordation of the 
 
 instrument of conveyance ^qq 
 
 364. What constitutes actual notice 480 
 
 365. What matters contained in record sufficient to put party on 
 
 inquiry so as to constitute notice to him 400 
 
 366. As to lis pendens notice ..•..,. 4<» 
 
CONTENTS. XIX 
 
 CHAPTER XXXIV. 
 
 PARTITION. 
 
 367. Definition and kinds of partition 493 
 
 368. Compulsory partition and those among whom it may be made. . 494 
 
 369. How and where parties may be compelled to make partition 496 
 
 370. The property that may be partitioned 496 
 
 371. As to questions of title in partition suits 497 
 
 372. When land may be sold in a suit for partition thereof 499 
 
 373. Some principles applying to the method of making partition.. . . 500 
 
 374. What constitutes "ouster" as between tenants in common 503 
 
 375. Principles of accounting between co-tenants when one has re- 
 
 ceived more than his share of the comnion property 504 
 
 376. The commissioners appointed to make partition and their 
 
 report 507 
 
 377. Who are necessary parties to a suit for partition 508 
 
 378. What su£Scient averments of a bill in a suit for partition 509 
 
 CHAPTER XXXV. 
 
 PARTNERSHIP. 
 
 379. What constitutes a partnership, and the different kinds thereof. 512 
 
 380. Powers of co-partners 513 
 
 381. How assets of partnership applied as to payment of firm and 
 
 partnership debts 514 
 
 382. Suits by and between partners 514 
 
 383. Settlement and accounting between partners 515 
 
 384. Who may maintain a bill for an accounting of partnership affairs. 516 
 
 385. Mode of taking accounts in settlement of partnership affairs 517 
 
 386. When and how a dissolution of partnership is effected 517 
 
 387. The effect of a dissolution of a partnership 518 
 
 CHAPTER XXXVI. 
 
 PRINCIPAL AND SURETY. 
 
 388. Suretyship defined and the nature of the contract 519 
 
 389. Who is principal and who surety, and how this relation may be 
 
 shown 520 
 
 390. Contribution among co-sureties 521 
 
 391. Rights and remedies of the surety as to the principal 521 
 
 392. Rights and remedies of surety as to creditors 523 
 
 393. What will release the surety 524 
 
 394. What will not release a surety 525 
 
 395. Duty of the obligee after notice by the surety to sue 526 
 
396. 
 397 
 398 
 399- 
 400. 
 40I 
 
 402 
 
 CONTENTS. 
 
 CHAPTER XXXVII. 
 
 SPECIFIC PERFORMANCE. 
 Prindples governing the specific perfonnance of contracts 528 
 
 Ciiaracter of contract entitling party to specific performance 529 
 
 When contracts for specific performance need not be in writing. 530 
 
 As to the vendor's title in suits for specific perfonnance 533 
 
 What persons may compel specific performance 534 
 
 Who should be defendants in suits for specific performance 535 
 
 What a sufficient signing of the contract under the statute of 
 frauds 537 
 
 403. As to the use of parol evidence to explain the contract for the 
 
 sale of real estate 53^ 
 
 404. As to the enforcement of options for the purchase of real estate. 539 
 
 405. What contracts will be specifically enforced, together with some 
 
 illustrative instances of specific performance 542 
 
 406. What contracts will not be specifically enforced, together with 
 
 some further illustrative instances as to specific performance.. 545 
 
 407. As to specific performance of contracts against married women.. 547 
 
 408. As to the allegations of the bill in a suit for specific perform- 
 
 ance 548 
 
 409. As to the defense of suits for specific performance. 549 
 
 410. The decree in suits for specific performance 550 
 
 CHAPTER XXXVIII. 
 
 SUBROGATION. 
 { 411. The origin and purpose of snbrogation 552 
 
 412. Who entitled to subrogation, and some of the principles govern- 
 
 ing the right thereto 553 
 
 413. Subrogation where purchaser of real estate, or other person, dis- 
 
 charges incumbrances thereon reg 
 
 414. Subrogation of legatees and devisees rcg 
 
 415. Suhrogation with respect to insurance companies 559 
 
 416. Subrogation as to indorsers of commercial paper 560 
 
 416a. As to subrogation among joint debtors 5^2 
 
 417. Who are not entitled to subrogation _ , , cgj 
 
 CHAPTER XXXIX. 
 
 USURY. 
 { 418. The legal rate of interest and the statute relative thereto 564 
 
 419. What contracts and agreements usurious " .5. 
 
 420. What contracts, bargains or agreements not usurious " ] cfic 
 
 421. Interest on interest when and when not usurious cfifi 
 
 422. What law governs as to rate of interest ^er 
 
 423. How interest computed in cases of partial payments. ..'...'. rg. 
 
CONTBNTS. XXI 
 
 424. Applications of usurious interest to liquidation of principal debt. 567 
 
 425. How and by whom defense of usury may be made 568 
 
 426. The payment of usurious interest may be recovered back and 
 
 how 569 
 
 427. As to the proof of usury 570 
 
 428. As to the calculation of interest in the entry of a decree 570 
 
 CHAPTER XI,. 
 
 WILLS. 
 ' 429. Equity jurisdiction as to the contest of wills 572 
 
 430. Manner of contesting the will and the form of the issue to be 
 
 directed 573 
 
 430a. Trial by jury in a court of equity and the awarding of damages 
 
 therein 573 
 
 431. Who may bring suit to contest a will i 574 
 
 432. Parties defendant in a suit to contest a will 575 
 
 433. Who to be plaintiff and who to be defendant in the issue, when 
 
 directed 576 
 
 434. Contest of a will, a proceeding inter partes 576 
 
 435. When a will contest is decided, the functions of the suit are ex- 
 
 hausted 577 
 
 436. A will may be good in part, and void in part 577 
 
 437. Equity jurisdiction as to lost wills 577 
 
 437a, The proof required in the establishment of a lost will 578 
 
 CHAPTER XU. 
 
 EXCI^USrVE JURISDICTION. 
 
 ALIMONY. 
 
 438. Origin and definition of alimony 580 
 
 439. When alimony will not be allowed 581 
 
 44D. Allowance of alimony pendente lite 581 
 
 441. When permanent alimony will be granted and the amount 
 
 thereof 584 
 
 442. Illustrative cases as to the amount of alimony 585 
 
 443. Decrees in cases wherein alimony is allowed 586 
 
 444. Alimony as a distinct subject of equity jurisdiction 589 
 
 445. Alimony as to thehusband 590 
 
 CHAPTER Xl,II. 
 
 ANNULMENT OF MARRIAGS. 
 
 446. The annulment of marriage and when decreed 594 
 
 447 As to jurisdiction to annul marriage 595 
 
 448. The decree of annulment 596 
 
 449. Suits to affirm marriages 596 
 
XXU CONTENTS. 
 
 CHAPTER XUII. 
 creditors' biu^. 
 
 § 450. origin, definition and classification of creditors' bills 59R 
 
 451. Who may file a creditors' bill 599 
 
 452. Parties to creditors' bills 600 
 
 453. Wben creditors' bill may be maintained. 604 
 
 454. What creditors' bUl should show on its face 605 
 
 455. When creditors' bill suspends other suits 606 
 
 456. What property reached by creditors' bill 608 
 
 457. Order of reference in creditors' suits 609 
 
 458. Duties of commissioners to whom creditors' suit is referred, and 
 
 proceedings before tiirn 6io 
 
 459. Eifect of convening creditors before a commissioner 613 
 
 460. Ivien of judgment upon debtor's real estate 615 
 
 461. The docketing of judgments and the effect thereof 616 
 
 462. As to the application of the statute of limitations in creditors' 
 
 suits 618 
 
 463. As to the limitation of the right to enforce judgment and other 
 
 liens 620 
 
 464. As to the priority of judgment and other liens 621 
 
 465. When error to direct sale of land 623 
 
 466. When creditors' bill will not be dismissed 623 
 
 467. As to power and jurisdiction of a court of equity on a creditors' 
 
 bill 624. 
 
 468. The decree in a creditors' suit 625 
 
 CHAPTER XLIV. 
 
 DEEDS OF TRUST. 
 } 469. Origin and definition of a deed of trust 628! 
 
 470. Who may execute a deed of trust 629 
 
 471. What property may be conveyed in trust 629 
 
 472. What a sufiScient description of the property in a trust deed 631 
 
 473. Description of the debt intended to be secured by the deed of 
 
 <^^t 632 
 
 474. As to future advances under a deed of trust 633 
 
 475. Form and validity of a trust deed gj. 
 
 476. Reservations made by the grantor in a trust deed, and his rights 
 
 as to the trust property after the execution of the deed of 
 
 *^t 634 
 
 477. The title of the trustee under a deed of trust 635 
 
 478. Relation and duties of the trustee to the parties to a trust deed '. '. 636 
 479 Notice and terms of sale under a deed of trust 6^8 
 
 480. As to the trustee making sale of the trust property. . ...... 640 
 
 481. The deed of the trustee, and what it conveys to the purchaser. '. 642 
 
 482. Suit to set aside a sale made by a trustee (.., 
 
V CONTENTS. XXIU 
 
 483. Order in which debts secured by trust deed should be paid. . . . 644 
 
 484. Remedy of cestui que trust where the trustee has misapplied the 
 
 proceeds of the trust sale 645 
 
 485. Action at law on debt secured by trust deed 646 
 
 486. Suits in equity to enforce trust deed liens 646 
 
 487. When debt secured by deed of trust is barred by statute of lim- 
 
 itations 646 
 
 CHAPTER XLV. 
 
 DIVORCE. 
 
 8 488. Jiuisdiction and kinds of divorce 648 
 
 489. Divorce from the bond of matrimony 650 
 
 490. Natural or incurable impotency of body as a ground of divorce. 651 
 
 491. Willful abandonment or desertion as a ground for divorce 652 
 
 492. Adultery as a ground of divorce 655 
 
 493. Divorce from bed and board 656 
 
 494. Cruel or inhuman treatment as a ground of divorce 657 
 
 495. Reasonable apprehension of bodily hurt as a ground of divorce. 660 
 
 496. Habitual drunkenness as a ground of divorce 661 
 
 497. The evidence in suits for divorce 662 
 
 498. The bill in suits for divorce 666 
 
 499. Defenses to suits for divorce, and how made 669 
 
 500. The effect of a decree of divorce 671 
 
 CHAPTER XI,VI. 
 
 EI.ECTION. 
 { 501. Definition of election and the principles upon which it stands. . 674 
 
 502. When a party is put to his election 674 
 
 503. In what cases the doctrine applies 675 
 
 504. What persons bound to make election 675 
 
 505. Election by a widow between her estate under the law and a 
 
 testamentary gift in lieu thereof 676 
 
 506. Effect of election when made 677 
 
 CHAPTER XI,VII. 
 
 FORFEITURES AND PENALTIES. 
 i S°7- Jurisdiction in equity and origin thereof as to forfeitures and 
 
 penalties 678 
 
 508. Forfeiture in cases of non-payment of rent and breach of cove- 
 
 nants and conditions 679 
 
 509. Whether a sum agreed to be paid upon breach of a condition is 
 
 liquidated damages or a penalty 681 
 
 510. Relief as to statutory penalties 683 
 
Xxiv CONTENTS. 
 
 {511. Questions of forfeiture tried at common law cannot be retried in 
 
 equity 685 
 
 512. Specific instances of forfeitures wherein relief has or has not 
 
 been granted 684 
 
 513. Waiver of forfeiture 685 
 
 CHAPTER XLVIII. 
 LIBNS. 
 
 514. Mechanics' lien — origin, nature and definition thereof 687 
 
 515. Who may claim a mechanics' lien 688 
 
 516. Against what persons a mechanics' lien may be asserted 690 
 
 516a. To what property a mechanics' lien will attach 693 
 
 517. How a mechanics' lien is created 697 
 
 518. The account of the claimant under the mechanics' lien law 699 
 
 519. How and by whom mechanics' lien may be enforced 701 
 
 520. What should be averred in the bill to enforce a mechanics' lien. 702 
 
 521. Laborers' liens, origin of and how created 703 
 
 522. The extent and character of laborers' liens 704 
 
 523. Vendor's lien on sale of real estate 705 
 
 524. Vendor's equitable lien on the sale of real estate 706 
 
 525. Release or waiver of the vendor's lien, when properly created. 707 
 
 526. Lien of vendor upon sale of equitable title 708 
 
 527. Time within which a vendor's lien may be enforced 708 
 
 528. The bill to enforce a vendor's lien 709 
 
 529. As to the enforcement of the vendor's lien 710 
 
 530. The statutory lien upon domestic steamers 711 
 
 CHAPTER XUX. 
 
 MORTGAGBS. 
 
 531. Definition and kinds of mortgages 712 
 
 532. When a writing is a mortgage, though in form a deed 714 
 
 533- Distinction between a mortgage and a pledge 717 
 
 534. Distinction between a mortgage and a conditional sale 717 
 
 535. Mortgages for the support of the grantors and others 718 
 
 536. Form and sufl5.ciency of a mortgage 719 
 
 537. Defeasance as a part of a mortgage 720 
 
 538. The debt secured by the mortgage , 720 
 
 539. The doctrine of tacking as applied to mortgages 721 
 
 540. As to the property upon which a mortgage may be taken and the 
 
 description thereof 722 
 
 541. Mortgages upon railroad property 723 
 
 542. The manner in which a railroad company may mortgage its 
 
 property and the extent thereof 724 
 
 543. What person entitled to the rents after the execution of the 
 
 mortgage 72^ 
 
CONTENTS. XXV 
 
 544. Transfer of the debt secured by the mortgage 725 
 
 545. Waste committed by the mortgagor and the prevention thereof 
 
 by injunction 727 
 
 546. The rights and duties of the mortgfagee when in possession of 
 
 the mortgaged premises 728 
 
 547. Equity of redemption as to mortgages 729 
 
 548. Who may redeem property from the lien of a mortgage 730 
 
 549. Statutes extending the time of redemption under mortgages. . . . 731 
 
 550. Of the foreclosure of mortgages 732 
 
 551. Defenses to foreclosure suits 735 
 
 552. The extent of the Uen of a mortgage 736 
 
 CHAPTER L. 
 
 TRUSTS AND TRtJSTBBS. 
 552a. Definition and kinds of trusts 737 
 
 553. How an express trust may be created, and the essential elements ' 
 
 of its validity 739 
 
 554. What trusts are void 742 
 
 555. Of constructive trusts 745 
 
 556. The character of the evidence required to establish constructive 
 
 trusts 747 
 
 557. As to constructive trusts among near relatives 747 
 
 558. When parol evidence may be used to establish a trust 748 
 
 559. As to charging a party holding property under a will as a trustee 
 
 for another 750 
 
 560. Precatory trusts 751 
 
 561. Charitable trusts 751 
 
 562. What a sufficient declaration of a voluntary express trust 752 
 
 563. As to the revocation of trusts 754 
 
 564. The cancellation of trusts. 755 
 
 565. Trust estates are subject to the debts of the beneficiaries 756 
 
 566. The rights and powers of the beneficiary with reference to the 
 
 trust fund 75^ 
 
 567. The statute of limitations as to trusts 757 
 
 568. The trustee, his appointment and his removal 758 
 
 569. The title or estate which the trustee takes in the trust property. 759 
 
 570. The powers and duties of the trustee as to the trust property. . . 759 
 
 571. The care and diligence required of trustees in the management 
 
 of the trust property 760 
 
 572. The investment of the trust funds by the trustee 761 
 
 573. When a purchaser from the trustee must see to the application 
 
 of the trust funds 762 
 
 574. Pollovring the trust property 7^3 
 
 575. Remedies with reference to the unauthorized disposal or transfer 
 
 of the trust property 7^3 
 
 576. The purchase of the trust property by the trustee 764 
 
 577. The accounts and compensation of trustees 764 
 
xxvi CONTBNTS. 
 
 CHAPTER LI. 
 
 AUXILIARY JURfSDICTION. 
 
 BH.W OF DISCOVERY. 
 i 578. Oassification and definition of bills of discovery 766 
 
 579. When a pure bill of discovery may be filed 767 
 
 580. Against whom and in what cases a bill of discovery may be 
 
 filed 767 
 
 581. What matters the defendant must disclose 768 
 
 582. Bills of discovery in aid of actions at law 770 
 
 583. Discovery and production of documentary evidence 770 
 
 584. EUl of discovery may be filed, though the party may be com- 
 
 pelled to testify as a witness 77' 
 
 585. The essential allegations of a bill of discovery 772 
 
 586. The answer to a bill of discovery 773 
 
 587. The effect of an answer to a bill of discovery 774 
 
 CHAPTER I.II. 
 
 BII,I^ TO PERPETUATE TESTIMONY. 
 J 588. The object of bills to perpetuate testimony 776 
 
 589. The interest necessary to maintain a bill to perpetuate testi- 
 
 mony 776 
 
 590. What must appear in a bill to perpetuate testimony 776 
 
 591. The statutory provision as to the perpetuation of testimony. . . . 777 
 
 CHAPTER IvIII. 
 
 B1-L,ZS DE BENE ESSE. 
 
 i 592. Definition and nature of a bill de bene esse 779 
 
 593. Who may maintain a bill de bene isse 780 
 
 CHAPTER UV. 
 
 Bins OF rNTERPI,EADER. 
 
 i 594. The definition and object of bills of interpleader 781 
 
 595. By whom a bill of interpleader may be filed 781 
 
 596. When a bill of interpleader should be filed 782 
 
 597. The essential allegations of a bill of interpleader 783 
 
 598. The right and extent of interpleader under the statute 784 
 
TABIvE OK CASES. 
 
 PAGE 
 
 Abbott V. Jacksou, 43 Ark 434 
 
 V. li'Hommedieu, 10 W. Va. 
 
 528, 529, 550 
 
 V. Treat, 78 Me 459 
 
 Abeel v. Hubbell, 52 Mich 39 
 
 Abell V. Prairie Civ. Tp., 4 Ind. 
 
 App 143 
 
 Abemathy v. Phillips, 82 Va 11, 19 
 
 Abney v. Ohio Lmnber and Min- 
 ing Co. , 45 W. Va 483, 485 
 
 Ackers v. Rowan, 33 S. C 722 
 
 Adams v. Buhler, 116 Ind 702 
 
 V. Logan, 27 Gratt 525 
 
 Adanison v. Jarvis, 4 Bing 109 
 
 Adhius V. Edwards, 83 Va 225 
 
 Aikin v. Suttle, 4 Lea (Tenn. ) . . . . 84 
 Aitchison v. Aitchison, 99 Iowa . . 587 
 
 Akin V. Kellogg, 119 N. Y 459 
 
 Aliley V. Akley, 16 Vt 41 
 
 Alden v. Johnson, 63 Iowa 186 
 
 Aldrich v. Cooper, 2 Lead. Cas. 
 
 Eq 440 
 
 Alderson v. Conunissioners, 32 W. 
 
 Va 6, 390 
 
 V. Henderson, 5 W. Va 622 
 
 Alexander's Heirs v. Byrd, 85 Va. 525 
 
 Alexander v. Church, 53 Conn 88 
 
 Alexander & Co. v. Newton et al. , 
 
 2 Gratt 467 
 
 Alkire v. Alkire, 33 \V. Va 652, 653 
 
 Alleman v. Knight, 19 W. Va 
 
 5. 74, 274, 377, 379 
 
 Allen V. Belchers, 2 H. & M 398 
 
 V. Berryhill, 27 Iowa 206 
 
 V. Chase, 3 Wis 35 
 
 V. Gibson, 4 Rand 728 
 
 V. Goodnow, 71 Me 722 
 
 V. Hanks, 136 {U. S 83 
 
 V. Jackson, 122 111 261 
 
 V. McCoy, 8 Ohio 132 
 
 V. Poole, 54 Miss.'. io8 
 
 V. Yeater, 17 W. Va. .89, 465, 468 
 
 Alley V. Chase, 83 Me 5 
 
 Almond v. Almond, 4 Rand...58S, 589 
 
 Almonds v. Wilson, 75 Va 574 
 
 Alston V. Munford, i Brock 440 
 
 Alston V. Newcomer, 42 Miss 54 
 
 PAGB 
 
 Alvis V. Morrison, 63 111 485 
 
 Altmeyerv. Caulfield, 37 W. Va..49, 65 
 Am. Un. Tel. Co. v. U. P. R. Co., 
 
 I Fed. Rep 120 
 
 Ambler v. Leach, 15 W. Va 87, 641 
 
 V. Norton, 4 H. & M 138 
 
 V. Warwick, i Leigh 646 
 
 V. Wild, 2 Wash 478 
 
 Amherst College v. Ritch, 151 
 
 N. Y 750, 751 
 
 Amiss V. Williamson, 17 W. Va. . . 161 
 Anchor Stove Co. v. Gray, 9 W. 
 
 Va 636 
 
 Anderson v. Burnett, 5 How 277 
 
 V. Coal Co., 12 W. Va 66, 75 
 
 V. Cranmer, 11 W. Va 80, 574 
 
 V. Jett, 89 Ky 265 
 
 V. M. & E. Tenn. R. Co., 5 
 
 Am. R. R. & C. Rep 119 
 
 V. Nagle, 12 W. Va 
 
 483, 484, 609. 615 
 
 V. Piercy et al., 20 W. Va 
 
 174, 176, 180, 181, 184, 677 
 
 V. Snyder, 21 W. Va 23 
 
 V. Steger, 50 N. E. Rep 583 
 
 Andrews v. Donnerstag, 171 111.. . 287 
 
 V. Jackson, 168 Mass 460 
 
 V. Mundy, 36 W. Va 54, 55 
 
 V. Murphy, 12 Ga 27 
 
 V. Nat. Foundry and Pipe 
 
 Works, 6i Fed. Rep 630 
 
 V. Sullivan, 2 Gill 5 
 
 Ankeney v. Hannon, 147 V. S 430 
 
 Anonymous, 89 Ala 651 
 
 Antcli£fe v. June, 81 Mich 264 
 
 Anthony v. Oldacre, 4 Call 12, 16 
 
 Arbentz v. Railroad Co., 33 W. Va. 376 
 Arbuckle v. McClanahan, 6 W. 
 
 Va 392 
 
 Archeson v. Miller, 2 Ohio St 109 
 
 Argand RefininglCo. v. Quinn, 39 
 
 W. Va 306 
 
 Armentrout v. Shafer, 89 Va 194 
 
 Armistead v. Dangerfield, 3 Munf. iii 
 Armstrong v. Armstrong, i Leigh. 43 
 
 v. Bailey, 34 W. Va . .747, 748 
 
 v. Cheshire, 2 Dev. Eq 5 
 
 (xxvii) 
 
XXVUl 
 
 TABI.E OF CASES. 
 
 PAGS 
 Annstrong County v. Clairor 
 
 County, 66 Pa. St 109 
 
 V. Karshner, 47 Ohio St 119 
 
 V. Lachman, 84 Va 286 
 
 V. Levan, 109 Pa. St. 143 
 
 V. McClure, 4 Heisk. (Tenn.). 408 
 
 V. Poole, 30 W. Va 401, 523 
 
 V. Walkup, 9 Gratt 331 
 
 V. WUson, 19 W. Va 275, 293 
 
 Arnold v. Arnold, 11 W. Va 498 
 
 V. Arnold, 8 B. Mon 133 
 
 V. Bunner, 42 W. Va 495 
 
 V. Casner, 22 W. Va 
 
 394, 598, 599. 600. 627 
 
 V. County Court, 38 W. Va. . 396 
 
 V. Hickman, 6 Munf 99 
 
 V. Pawtuxet Water Co., 18 
 
 R. 1 770 
 
 V. Slaughter, 36 W. Va 298 
 
 Arthur v. Oaks, 24 U. S. App. 
 
 385, 386,387 
 
 Ashby V. Bell, 80 Va 524 
 
 Ashcraft t. Armond, 44 Iowa 206 
 
 Asheville, etc., Co. v. Southwick, 
 
 119 N.C 694 
 
 Askew V. Askew, 103 N. C 133 
 
 Askey v. Williams, 74 Tex 339 
 
 Askwith T. Allen, 33 Neb 62 
 
 PAGE 
 
 Aston V. Aston, i Ves 350 
 
 Astrip V. Rasnake, 96 Va 721, 735 
 
 Atherton v. Hull, 12 W. Va 642 
 
 Atkinv. Merrill, 39.111 133 
 
 Atkinson v. Beckett, 34 W. Va. 
 
 636,759 
 
 V. Christian, 3 Gratt 161 
 
 V. Marietta & C. R. Co., 15 
 
 Ohio St 723 
 
 V. Miller, 34 W. Va 485, 713 
 
 V. Sutton, 23 W. Va 136 
 
 V. Weidner, 79 Mich 305 
 
 Atlanta & West Point R. Co. v. 
 
 Speer, 32 Ga 6 
 
 Atlantic Ins. Co. v. Lunar, i 
 
 Sandf.Ch 766 
 
 Attorney-Gen. v. Algonquin Club, 
 
 i53Mass 347 
 
 Aurand v. Aurand, 157 111 587 
 
 Austin V. Austin, etc., Ass'n, 87 
 
 Tex 367 
 
 V. Brown, 37 W. Va 86 
 
 V. Clark & Crump, 8 W. Va. 
 
 37,38 
 
 V. Palmer, 2 Vt 56 
 
 Avis V. Vineland, 55 N. J. I, 367 
 
 Ayers v. Blair, 26 W. Va 405 
 
 Backer v. Pyne, 130 Ind. 260 
 
 Bacon y. Fnsbie, 15 Hun 260 
 
 Badger v. Badger, 2 Wall 417, 420 
 
 Baer Sons Grocer Co. v. Williams, 
 
 43 W. Va 294, 306 
 
 Bagby v. Atlantic M. & O. R. Co., 
 
 86 Pa. St. 229 
 
 Bagley v. Williams, 4 Griff, 276 
 
 Bailey v. Bailey, 21 Gratt 
 
 586, 652, 657, 663, 665 
 
 V. Dilworth, 10 Smedes & 
 
 M 172 
 
 V. Gardner, 31 W. Va 431 
 
 V. Robinson, i Gratt 168 
 
 Bailey's Case, 15 R. 1 170 
 
 Baines v. McGee, 9 Wis 168 
 
 Baird v. New York, 96 N. Y 273 
 
 Baker v. Baker, 87 Va 166, 194 
 
 V. Humphrey, loi U. S 280 
 
 V. Morris, 10 Leigh 768 
 
 V. Naglee, 82 Va 60 
 
 V. Oil Tract Co, 7 W. Va 12 
 
 V. Rinehard, 11 W. Va. ..360, 361 
 
 Baldenberg v. Warden, 14 W. 
 
 Va 548 
 
 Ball V. Doud, 26 Or 39 
 
 V. Mabry, 91 Ga 231 
 
 V. Setzer, 33 W. Va 440 
 
 V. Stewart, 41 W. Va 657 
 
 Ballard v. Ballard, 25 W. Va. .529, 550 
 V. Great Western M. & M. 
 
 Co., 39 W. Va 68, 69, 486 
 
 Ballou V. Ballou, 94 Va 501 
 
 Bait. & Ohio R. Co. v. Gallaghue, 
 
 12 Gratt 74 
 
 V. Lafferty, 2 W. Va 277 
 
 V. Vanderwarker, 19W. Va... 143 
 
 V. Vanderwarker, 33 W. Va. 232 
 
 V. Walker, 45 Ohio St 
 
 106, 109, 562- 
 
 Bank v. Adrian, 116 N. C 450 
 
 V. Allen, 76 Va 560, 618 
 
 V. Americus, 92 Ga 75 
 
 V. Barrington, 2 Pa 519. 
 
 V. Baylen, 26 W. Va 568 
 
 V. Campbell, 75 Va 261 
 
 V. Campbell, 78 Va 9a 
 
 V. Camngton, 7 Leigh 745 
 
 V. Evans, 9 W. Va 523, 565 
 
 V. Fugate, 93 Va 567 
 
 V. Gettinger, 4 W. Va 66 
 
 V. Harman, 75 Va 705 
 
 V. Hopp, 10 Gratt 635 
 
 V. Ireland, 122 N. Y 736 
 
 V. Jarvis, 28 W. Va 409 
 
 V. Jeffries, 21 W. Va 27 
 
 V. Lawrence M'f'g Co.. 06' 
 
 N.C ^....'..^736 
 
TABLE OF CASES. 
 
 XXIX 
 
 PAGB 
 
 Bank of U. S. v. Merchants' Bank, 
 
 I Rob. Rep 74 
 
 Bank v. Neale, 28 W. Va 
 
 398,485,612,621 
 
 V. Nelson, i Gratt 768, 770 
 
 — -V. Patton, I Rob. Rep 280, 341 
 
 — - V. Roher, 39 S. W. Rep 726 
 
 V. Union "fiust Co., 149 Mass. 562 
 
 V. Williams, 38 Fla 692 
 
 V. Wilson, 25 W. Va 
 
 298, 300, 303, 440, 626 
 
 V. Wilson, 29 W. Va 603 
 
 V. Yocum, 9 N. W. Rep 460 
 
 V. Judgh, 8 Conn 31 
 
 Banta v. Savage, 12 Nev. 260 
 
 Barber v. Barber, 14 I<aw Rep 662 
 
 Barbour v. National Exchange 
 
 Bank, 45 Ohio St 219 
 
 Barbour v. Tompkins, 31 W. Va., 
 
 129. 400, 566, 568, 632 
 
 Bardstown & L. R. Co. v. Met- 
 calfe, 4 Mete 723 
 
 Barker v. Jenkins, 85 Va 397 
 
 Barksdale v. Canada, 76 Va 517 
 
 Barnard V. German-AJn. Seminary, 
 
 49 Mich 144 
 
 V. Roane Iron Co., 85 Tenn.. 88 
 
 Barnes v. Barnes, 95 Cal 657, 659 
 
 V. Barnes, 104 N. C 302 
 
 V. Boardman, 9 L. R. A 504 
 
 V. Brown, 32 Mich 276 
 
 V. Mayo, 19 Fla 82 
 
 V. Trafton, 80 Va 523 
 
 Bamett v. Bamett, 83 Va 
 
 102, 274, 276 
 
 Barney v. Little, 15 Iowa 485 
 
 Barcellsv. Hapgood, 118 N. C 413 
 
 Bamham v. McNeely, 89 Ga 319 
 
 Bamum v. Bamum's Ex'r, 83 Va. 89 
 
 Bamum v. Frost, 17 Gratt 334, 335 
 
 Barr V. Clayton, 39 W. Va 83 
 
 Barrett v. McAllister, 33 W. Va. .. 
 
 400, 539. 540 
 
 Barrons v. Robbins, 22 Mich 83 
 
 Bartlett v. Bartlett, 37 W. Va. . . . 158 
 
 V. Clevinger, 35 W. Va 286 
 
 —,— V. New York, sJSandf 54 
 
 V. Slater, 53 Conn 183 
 
 Barton v. Barbour, 104 U. S 231 
 
 V. Brent, 87 Va 305 
 
 V. Mill, 78 Va 284 
 
 Basket v. Noss, 115 N. C 267, 450 
 
 Bass V. Bass, 4 H. & M 28 
 
 Bassett v. Bassett, 9 Bush 594 
 
 V. Crmningham, 9 Gratt 
 
 46. 562, 563, 565 
 
 Bates V. Swiger, 40 W. Va 
 
 141, 157, 450, 451, 542 
 
 Battaille v. Maryland Hospital, 76 
 
 Va 397, 398 
 
 PAGE 
 Bath Sav. Institution v. Hathom, 
 
 88 Me 754 
 
 Bauer v. Bauer, 82 Md 269 
 
 Baugher v. Eichelberger, 11 W. 
 
 Va 599 
 
 Baum V. Mullen, 47 N. Y 148 
 
 Bauman v. Cunningham, 48 Minn. 305 
 
 Baxter V. Baxter, i Mass. Rep 664 
 
 V. Tanner, 25 W. Va 80, 467 
 
 V. Vincent, 6 Vt 56 
 
 Beale v. Blake, 45 N. J. Eq 83 
 
 V. Chase, 31 Mich 266 
 
 Beales v. Congregation, i E. D. 
 
 Smith 700 
 
 Beals V. Intrup, 40 111. . , 703 
 
 Bean v. Bean, 25 W. Va 40 
 
 V. Forman, 6 Pick. (Mass.).. 35 
 
 Beard v. Arbuckle, 19 W. Va 
 
 79.405. 554. 562 
 
 V. Beard, 22 W. Va 138, 436 
 
 V. Beard, 25 W. Va 379, 394 
 
 Beardsley v. Marsteller, 120 Ind. . 192 
 
 Beaseley v. Bray, 98 N. C 295 
 
 Beatley v. Veon, 18 W. Va. . .404, 405 
 Beaubienv. Poupard,Harr.(Mich.) 168 
 Beaupland v. McKeen, 28 Pa. St.. 144 
 
 Beck V. Beck, 24 W. Va 630 
 
 V. Merriam, 10 Neb loi 
 
 V. Railway Teamsters' Prot. 
 
 Ass'n, 42 L. R. A 389 
 
 Beckford v. Wade, 17 Ves. Jr 758 
 
 Beckham v. Duncan, 5 S. E. Rep. 500 
 
 V. Duncan, 9 S. E. Rep 523 
 
 Beckwith v. Butler, i Wash 319 
 
 Bedford v. Hickman, 5 Call 16 
 
 Beebe v. Wilkinson, 30 Minn 142 
 
 Beecher v. Lewis, 84 Va 446, 471 
 
 V. Wilson, 84 Va 745, 746 
 
 Behrensv. McKenzie, 23 Iowa... 206 
 Beime's Heirs v. Von Ahlefeldt,|33 
 
 W. Va 123 
 
 Beims v. Marus, 44 W. Va 354 
 
 Belknap v. Gleason, 11 Conn 770 
 
 Bell V. Bell, 2 W. Va 32 
 
 V. Byerson, 11 Iowa 277 
 
 Bell's Adm'r v. Humphrey, 8 W. 
 
 Va 169, 170 
 
 Benbow V. Moore, 114 N. C 451 
 
 Benedict v. Chase, 58 Conn 108 
 
 V. Torrent, 83 Mich 497 
 
 Benner v. Kendall, 21 Fla 82 
 
 Bennett v. Bennett, 28 Cal 670 
 
 V. Bennett, 37 W. Va 430 
 
 V. Harper, 36 W. Va 675, 750 
 
 V. Hayden, 145 Pa. St 206 
 
 V. Mattingly, no Ind 434 
 
 V. Pierce, 45 W. Va 429, 439 
 
 V. Price, 45 W. Va 19 
 
 V. Stevenson, 53 N. Y 683 
 
 Benninger V. Hess, 41 Ohio St 513 
 
XXX 
 
 TABLE OF CASES. 
 
 PAGE 
 Bensimer v. Fell, 39 W. Va 
 
 601, 611, 614 618 
 
 Benson v. Maude, 6 Madd 183 
 
 V. Snyder, 42 W. Va 607, 614 
 
 Bentley v. McKibben, 6 W. Va. . 544 
 
 Benton v. Ward, 47 Fed. Rep Ii8 
 
 Bergen v. Jeffries, 80 Ala 381 
 
 Berkshire v. Evans, 4 Leigh 27 
 
 Bernards Tp. v. Morrison, 133 
 
 U. S 146 
 
 Berry v. Carter, 19 Kan 39 
 
 Berry v. Wiedtnan, 40 W. Va 748 
 
 Best V. Bumgardner, i L. R. A. . . 732 
 
 V. Jenks, 123 111 134 
 
 Bethel] v. Bethell, 92 Ind 460 
 
 Bethlehem v. Annis, 40 N. H 731 
 
 Bettman v. Harness, 42 W. Va. . . 
 
 353, 354, 355. 47i 
 
 Beverly v. Allen, i Rand 185 
 
 V. Bamitz, 55 Kan 732 
 
 V. Brooks et al., 4 Gratt 234 
 
 V. Rhodes, 86 Va 
 
 420, 600, 604, 626 
 
 Bias V. Vickers, 27 W. Va 275 
 
 Bibb V. Hunter, 79 Ala 740 
 
 Biddle v. Moore, 3 Pa. St 8 
 
 Bier v. Smith, 25 W. Va 535 
 
 Bieme v. Brown's Adm'r, 10 W. 
 
 Va. . . . .^ 167 
 
 v. Erskine, 5 Leigh.. 14, 16, 19, 21 
 
 ^ V. Ray, 37 W. Va 287, 289, 291 
 
 Biggerstaff v. Biggerstaff, 180 111.. 93 
 
 Bigley V. Walker, 14 Wall 643 
 
 Bignold V. Audland, 11 Simons. . . 784 
 Bill V. Schilling, 39 W. Va 
 
 276, 415, 416, 420 
 
 Billing V. Taylor, 10 Pick 130 
 
 Billings V. Aspen M. & S. Co., 2 
 
 CCA. (U.S.) 259.274 
 
 Billingsley v. Menear, 44 W. Va. . 284 
 Bihner v. Sherman, 23 W. Va 
 
 601, 603, 606, 614, 624 
 
 Bindley v. Martin, 28 W. Va 
 
 289, 290, 291 
 
 Binke v. Parke, 5 W. Va 530 
 
 Binks v. Binks, 7 Baxter (Tenn.). 510 
 
 Bird V. Stout, 40 W. Va 189 
 
 Birdsong v. Birdsong, 2 Head. 
 
 (Tenn.) 100 
 
 Bishof V. Bishof, 54 Conn 107 
 
 V. Hartley, 9 W. Va 285, 295 
 
 Bissell V. Michigan S. & N. J. R. 
 
 Co., 22 N. Y 148 
 
 V. Spring Valley, no U. S. . . 146 
 
 Bittle V. Wilson, 14 Ohio 302 
 
 Black V. Ross, 37 Mo. App 368 
 
 V. Shreve, 7 N. J. ^q 470 
 
 V. Smith, 13 W. Va 377 
 
 Blackford v. Hirst, 26 Gratt 486 
 
 Blackler v. Root, 114 Mass 185 
 
 PAGB 
 
 Blackwell v. Fry, 49 Mo. App 63 
 
 Blackshire v. Pettit, 35 W. Va.. . . 
 
 286, 291, 297 
 
 Blaine v. Harrison, 11 111 134 
 
 Blakely v. Briscoe, i Hempst 28 
 
 Blanchard v. Fried, 162 HI 695 
 
 Bland v. Bowie, 53 Al 153 
 
 V. Stewart, 35 W. Va 179, 399 
 
 Blankenship v. Spencer, 31 W. 
 
 Va 529 
 
 Blanton v. Taylor, Gilmer 139 
 
 Blessing v. Beatty, i Rob. Rep. .18, 22 
 Bloodgood V. Clark, 4 Paige Ch . . 225 
 Bloss V. Hull, 27 W. Va 
 
 37. 379. 473. 477. 57o 
 
 Blow V. Maynard, 2 Leigh 
 
 126, 133, 301 
 
 Bluestone Coal Co. v. Bell, 38 W. 
 
 Va 467 
 
 Blunt V. Gee, 5 Cal 677 
 
 Board v. Callahan, 33 W. Va. .310, 316 
 
 V. Wilson, 34 W. Va.. .11, 12, 708 
 
 Board of Education v. Brick Co., 
 
 44 Pac. Rep 692 
 
 V. Mitchell, 40 W. Va 291, 431 
 
 Bock V. Bock, 24 W. Va 609, 642 
 
 Bodine v. Killeen, 53 N. Y 149 
 
 Boggess V. Meredith, 16 W. Va. . . 
 
 504. 508, 509 
 
 Boggs V. Bodkin, 32 W. Va. . .532, 533 
 
 V. Harper, 45 W. Va 14, 16 
 
 V. McCoy, 15 W. Va 167 
 
 Boland v. St. Johns Schools, 163 
 
 Mass 347 
 
 Boling v. Mayor, etc., 3 Rand 159 
 
 Bon Aqua Imp. Co. v. Standard F. 
 
 Ins. Co., 34 W. Va 143 
 
 Bonifant v. Greenfield, i Cro 170 
 
 Bonney v. Bowman, 63 Miss 472 
 
 Boothey v. Mcjilton, 82 Va 477 
 
 Boring v. Boring, 2 W. Va 44, 46 
 
 Bom v. Williams, 81 Ga 73 
 
 Boruff V. Hudson, 138 Ind 536 
 
 Boshen v. Jurgen, 92 Va 16 
 
 Bosher v. Richmond & H. L. Co., 
 
 89 Va., 118, 119 
 
 Bosler v. Exchange Bank, 4 Pa. 
 
 St 191 
 
 v. Nat. Machine Co., 25 N. 
 
 E. Rep 118, 119 
 
 Bostick V. Powers, 12 Iowa 485 
 
 Boston V. C. & O. R. Co., 76 Va. . 403 
 
 Bostwick V. Beach, 103 N. Y 171 
 
 Botsford V. New Haven, etc., Co., 
 
 41 Conn 696 
 
 Boud V. Blankman, 29 Cal 168 
 
 Boughner v. Town of Clarksburg 
 
 '5 ^V^- •■••■• 374,375 
 
 V. Hall, 24 W. Va 521 
 
 Boulware v. Lewis, 83 Va 107, 521 
 
TABLE OF CASES. 
 
 XXXI 
 
 742 
 644 
 
 494 
 III 
 
 PAGE 
 Bourne's Ex'r v. Machan, Adm'r, 
 
 1 Gratt 184 
 
 Bowden v. Parrish, 85 Va 634 
 
 Boush V. Ware, 15 Pet 169, 488 
 
 Bowen v. Idley, 6 Paige 577 
 
 Bowers v. Ross, 55 Miss 55 
 
 Bowie V. Poor School Soc, 75 
 
 Va 609, 
 
 Bowles V. Brauer, 89 Va 639, 
 
 Bowman v. Christman, 4 Wend. . . 
 Bowyer v. Glendenning, 4 Munf.. 
 
 V. Martin, 27 W. Va 285 
 
 V. Seymour, 13 W. Va 679 
 
 Boyce v. Montauk Gas Co., 37 W. 
 
 Va 119 
 
 V. Strother, 76 Va 403 
 
 Boyd V. Oglesby, 23 Gratt 165 
 
 V. Woolwine, 40 W. Va 345 
 
 Boyer v. Berryman, 24 N. E. Rep. 206 
 
 Boyle V. Adams, 50 Minn 267 
 
 V. EscofiSe, 2 La. Ann 191 
 
 V. Latham, 61 Iowa 673 
 
 V. Townes, 9 Leigh 230 
 
 Bozart V. Largent, 128 111 121, 122 
 
 Braden v. Reitzenberger, 18 W. 
 
 Va. 274, 275, 401, 473. 475 
 
 Bradford v. Brinley, 145 Mass 186 
 
 V. McConihay, 15 W. Va 
 
 91. 182,405 
 
 V. Bradley's Adm'r, 83 Va. .. 198 
 
 -v. Richmond, 6 Vt 73 
 
 Y. Zehmer, 82 Va 498 
 
 Brady v. Brown, 38 Ark 661 
 
 V. City of Brooklyn, i Barb.. 35 
 
 V. Johnson, 75 Md 630 
 
 V. Waldron, 2 Johns. Ch 635 
 
 Brakely v. Tuttle, 3 W. Va 393 
 
 Braker v. Devereaux, 8 Paige Ch.. 508 
 
 Branson v. Shinn, 13 N. J. L 56 
 
 Branns v. Glesige, 130 Ind 347 
 
 Brass Foundry & Mach. Works v. 
 
 Parks Co., 115 Ind 147 
 
 Braxton v. Harrison, 11 Gratt. . . . 165 
 
 Brayson v. Kay, 33 S. C 721 
 
 Brazel v. Fair, 26 S. C 677 
 
 Bresler V. Pitts, 58 Mich 88 
 
 Brewer v. Hntton, 45 W. Va. . . .70, 74 
 Brice v. Brickerton et al., 18 W. 
 
 Va 197 
 
 Brice V. Nixon, 34 Gratt 495, 505 
 
 Brickhouse v. Hunter, Banks & 
 
 Co., 4H. &M 
 
 Brickley V. Edwards, 131 Ind. 
 Bridge Co. V. Summers, 13 W. 
 
 Va 357,374 
 
 Bridgeman v. Bridgeman, 30 W. 
 
 Va 163 
 
 Bright V. Kimble, 35 W. Va 83 
 
 V. Knight, 35 W. Va 754, 757 
 
 V. Newland, 4 Sneed 8 
 
 41 
 
 144 
 
 PAGE 
 Brinkman v. Ritzinger, 82 Ind. . . 220 
 Brighthope Ry. Co. v. Rogers, 76 
 
 Va 559 
 
 Bnscoe v. Ashby, 24 Gratt 481 
 
 Bristow V. Home Bldg. Co., 91 
 
 Va 224 
 
 Bristol Iron and Steel Co. v. 
 
 Thomas, 93 Va 603, 701 
 
 Britton V. Brewster, 2 Fed. Rep. . 460 
 
 Broadwater v. Dome, 10 Mo 100 
 
 Brock V. Brock, 92 Va 317 
 
 Brockman V. Hanks, 5 J. J. Marsh. 
 
 (Ky.) 71 
 
 Broderick's Will, 21 Wall 420, 573 
 
 Bronson v. Vaughn, 44 W. Va. . . 
 
 277, 298 
 
 Brooke v. N. Y., etc., R. Co., 108 
 
 Pa. St 143, 157 
 
 Brookhaven v. Smith, 118 N. Y... 142 
 Brooks V. Applegate, 37 W. Va. . . 286 
 
 . Cook, 8 Mass 73, 74 
 
 V. Miller, 29 W. Va 520 
 
 Brown v. Armistead, 6 Rand 170 
 
 V. Bates, 10 Ala 599 
 
 V. Bowen, 30 N. Y 144 
 
 V. Brown, 24 S. E. Rep. .581, 596 
 
 V. Brown, 58 N. Y 401 
 
 V. Caldwell, 23 W. Va 741 
 
 V. Chapman, 90 Va 274 
 
 V. Correll, 50 N. J. Eq 726 
 
 V. Crane, 69 Miss 55 
 
 V. Dail, 117 N. C 714 
 
 V. First Nat. Bank, Colum- 
 bus, 137 Ind 154 
 
 V. Grant, 29 W. Va 328 
 
 V. Grove, 116 Ind 461 
 
 V. Hartford Ins. Co., 117 
 
 Mass 32 
 
 V. John V. Ferrell Co.. 74 
 
 Fed. Rep 287, 606 
 
 V. Leavitt, 26 Me 39 
 
 V. McCune, 5 Sandf 151 
 
 V. Miller, 45 W. Va 451 
 
 V. Rice, 26 Gratt 92 
 
 V. Richards, 17 N. J. Eq 132 
 
 V. Sapham, 3 Cush 731 
 
 V. Slee, 103 U. S 542 
 
 V. Stewart, 56 Md 87 
 
 V. Wabash Ry. Co., 
 
 V. Wheeler, 17 Conn 144 
 
 V. Wylie, 2 W. Va 459 
 
 Brownell v. Brownell, 19 Wend. . 495 
 
 Brownie v. Martin, 28 S. C 716 
 
 Broyles v. Bee, 18 W. Va 534 
 
 Bruce v. Slemp, 82 Va 318, 319 
 
 Bruner's Appeal, 57 Pa. St 165 
 
 Brush Electric Co.'s Appeal, 114 
 
 Pa. St 5 
 
 Bryan v. Kales, 134 U. S 415 
 
 V. Winbum, 43 Ark 84 
 
XXX u 
 
 TABLB OF CASES. 
 
 PAGE 
 
 Bryant v. Erskine, 55 Me 731 
 
 V. Fisher, 85 N. C 36 
 
 V. Groves, 42 W. Va 417 
 
 V. Simoneau, 51 111 56 
 
 Bryce v. Massey, 35 S. C 634 
 
 V. Stevenson et al., 2 Rand... 161 
 
 Buchannon v. Hazard, 95 Pa. St... 150 
 V. Matlock, 8 Hmnph. (Tenn) . 
 
 577 
 
 Buckey v. Buckey, 38 W. Va 
 
 80, 97,98 
 
 Buckley v. Hamason, 50 Minn. . . 266 
 
 Buckler v. Hasterlik, 155 111 684 
 
 Bueter v. Bueter, i S. D 589 
 
 Bufkin V. Boyce, 104 Ind 226 
 
 Bulger V. Ross, 12 So. Rep 98 
 
 Ballard v. Chandler, 149 Mass 760 
 
 Bullitt V. Farrar, 42 Minn 259 
 
 Bullock V. Boyd, 2 Edw. Ch 30 
 
 Bumb V. Gard, 107 Ind 153 
 
 Bumberger v. Gersen, 24 Rep. 58 
 
 Bun V. Bun, 10 Paige Ch 588 
 
 Burbank v. Slinkard, 53 Ind 556 
 
 Burbridge v. Higgins, 6 Gratt 615 
 
 V. Sadler, 32 S. E. Rep. 14, 19, 758 
 
 Burgess v. Muldoon, 18 R. 1 122 
 
 Burk V. Burk, 21 W. Va 653, 665 
 
 Btirke v. Grant, u6 111 143 
 
 V. Adair, 23 W. Va 643 
 
 Burlew v. Quarrier et al. 16 W. 
 
 Va 83, 87, 400, 637 
 
 Burley v. Weller et al., 14 W. Va. 
 
 90. 273,468 
 
 Burley's Adm'r v. Duke, t Rand.. 162 
 
 FAGS 
 
 Bumey v. Savannah Grocery Co., 
 
 98 Ga 434 
 
 Bumhams v. Bumhams, 2 Barb. 
 
 Ch 508 
 
 Bums V. Bums, 13 Fla 662 
 
 V. Hays, 44 W. Va 605 
 
 V. Hindinan, 7 Ala 41 
 
 V. Meame, 44 W. Va 104 
 
 Burns v. Fisher, 23 Miss 191 
 
 Burt V. Timmons, 29 W. Va 
 
 285, 285, 292, 299, 300, 609 
 
 Burton v. Gibson, 32 W. Va 303 
 
 V. Warren, n Iowa 74 
 
 Burwell v. Anderson, 3 Leigh 
 
 181, 243. 254 
 
 V. Mandeville, 2 How. (U. 
 
 S.) 171 
 
 Burwell's Adm'r v. Fowler, 21 
 
 Gratt 488, 590 
 
 Bush V. Breining, 113 Pa. St. 99 
 
 Bush V. Cushman, 27 N. J. Eq 726 
 
 Bushong V. Rector, 32 W. Va 389 
 
 Buster v. Holland, 27 W. Va 380 
 
 Butcher v. Peterson, 26 W. Va. .11, 23 
 Butchers' etc., Co. v. L. & N. R. 
 
 Co., 14 CCA. (U.S.) 347 
 
 Butler V. Thompson, 45 W. Va. . . 
 
 286, 289, 291, 303 
 
 Buzard v. Houston, 119 U. S. . . . 5 
 V. Houston Bank, 30 U. S., I». 
 
 ed 5 
 
 Byerly v. Humphrey, 95 N. C.-. . . 86 
 
 Byrd v. Byrd, 32 S. W. Rep 271 
 
 — — V. Odem, 9 Ala. ■. 36 
 
 c. 
 
 C. h. & M. Co. V. Brockmeyer, 18 
 
 W. Va 691, 692, 693 
 
 Cabe V. Billows, 7 Gray 731 
 
 Cabel V. Given, 30 W. Va 401 
 
 Cable R. Co. v. Johnson, 2 Wash. 694 
 
 Cadogan v. Kennett, Cowp 280 
 
 Cady V. Gale, 5 W. Va 429, 539 
 
 Cain V. Cox, 23 W. Va 
 
 ^ , ■■■••■■.i ^76, 296,459, 749 
 
 Cake V. Woodbury, 3 App. D. C. . 235 
 Caldwell v. Auger et al., 4 Minn.. 144 
 
 V. Boyd, 109 Ind 756 
 
 V. Caperton, 27 W. Va 25 
 
 V. Montgomery, 8 Ga 608 
 
 V. Prindle, 19 W. Va 
 
 „ „ 63s, 636, 64s 
 
 Calfe V. Burgess, 3 W. Va 154 
 
 Calvin v. Bowman, 10 Iowa 485 
 
 Camden v. Alkire, 24 W. Va. .646, 647 
 V. Haymond, 9 W. Va 
 
 77. 396. 399 
 
 V. Hams, 15 W. Va 448 
 
 V. Hiteshaw, 23 W. Va..428, 433 
 
 Cameron v. Mount, 86 Wis ; • 
 
 Cammack v. Carpenter, 3 App. 
 
 Camp v. Bruce, 96 Va 
 
 Campau v. Van Dyke, 15 Mich. . . 
 Campbell v. Am. Pop. Ins. Co., i 
 
 McArthur 
 
 v. Campbell, 73 Iowa 
 
 V. Campbell, 90 Ga 
 
 V. Foster, 35 N. Y 
 
 V. Jacobson, 145 111 
 
 V. Logan, 2 Bradf. (N. Y.)... 
 
 V. McFadden, 9 Tex. Civ. 
 
 App 
 
 V. Railroad Co., 23 W. Va. . . 
 
 V. Rust, 8s Va 29, 547, 
 
 V. Scott, 5 T. B. Mon. 
 
 (Ky.) 
 
 'V. Titterman's Heirs, 20 W. 
 
 Va 528, 531, 
 
 Canada v. Barksdale, 84 Va 
 
 Cann v. Cann, 40 W. Va 
 
 Canner v. Root, 11 Col ..'. 
 
 460 
 
 419 
 411 
 273 
 
 39 
 582 
 584 
 608 
 698 
 576 
 
 536 
 392 
 574 
 
 72 
 
 538 
 
 47 
 
 193 
 
 312 
 
TABLE OF CASES. 
 
 xxxin 
 
 PAGE 
 
 Capehart v. Dowery, lo W. Va. . . 
 
 65, 67, 68, 403, 406 
 
 Caperton v. Landcraft, 3 W. Va . . 363 
 
 Capes V. Bnrgess, 135 111 74 
 
 Capp V. Hastings Prospecting Co., 
 
 40 Neb 148 
 
 V. Heniker, 55 N. H 2 
 
 Carbery v. W. Va. & P. R. Co.. . . 
 
 „ • ;■ 83, 105,498 
 
 Carbiener v. Montgomery, 97 
 
 Iowa 287 
 
 Carden v. Bank of West Virginia, 
 
 34W. Va 477 
 
 V. Carden, 107 N. C 56 
 
 Carey v. Burrows, 20 W. Va 
 
 427. 433.438 
 
 V. Coffee Stemming Mach. 
 
 Co., 20 S. E. Rep 118 
 
 V. Mackey, 82 Me 302 
 
 Cargill V. Konntz Bros., 24 h. 
 
 R- A 771 
 
 Carley v. Carley, 23 Ala 682 
 
 Camahan v. Ashworth, 31 S. E; 
 
 Rep 601, 712 
 
 Cameal v. Ljmch, 91 Va 490, 495 
 
 Carney v. Hadley, 32 Fla 354 
 
 V. Kain, 40 W. Va . . 739, 759, 760 
 
 Carolina, etc., Ass'ri v. Black, 119 
 
 N. C 553 
 
 Carothers v. Joliffe, 32 W. Va. . .499, 502 
 Carow V. Mowatt, 2 Edw. {N. 
 
 Y.) 16s 
 
 Carpenter v. Osborne, 102 N. Y . . 
 
 471, 574 
 
 Carper V. Hawkins, 8 W. Va 514 
 
 V. McDowell, 5 Gratt 485 
 
 Carr v. Carr, 22 Gratt 581 
 
 — ^ — V. Cliapman, 5 Leigh 416, 417 
 
 V. HolUday, 5 Ired. Eq 206 
 
 Carris v. Carris, 24 N. J. Eq 594 
 
 Carroll v. Brown, 28 Gratt 85 
 
 V. Giles, 30 S. C 265 
 
 V. Girard Fire Ins. Co., 72 
 
 Cal 39 
 
 V. McCullough, 63 N. H. . . . 2 
 
 Carrothers v. Harris, 23 W. Va. . . 459 
 Carskadon v. Forreyson, 17 W. 
 
 Va 741 
 
 V. Minke, 26 W. Va 456 
 
 Carson V. AUen, 2 Chand. (Wis.). . 
 
 71, 72 
 
 V. Flowers,;i5 Mass 775 
 
 V. Murray, 3 Paige 302 
 
 Carter v. Campbell, Gilmer 16 
 
 V. Hamilton, 77 Va 771 
 
 V. McArtor, 28 Gratt 466 
 
 V. McDaniel, 23 S. W. Rep. . 133 
 
 V. Scaggs, 38 Mo 36 
 
 V. Woolfork, 71 Md 83 
 
 PAGE 
 Carter's Ex'r v. Cutting et ux. , 5 
 
 Munf 176, 195, 242 
 
 Caruthers v. Board of Education, 
 
 i6W.Va 372,373 
 
 V. Caruthers, 107 Ind 383 
 
 Cary v. Cleveland & T. R. Co. , 29 
 
 Barb 48 
 
 Case V. Fishback, 10 B. Mon 8 
 
 Casey v. Cincinnati Typo. Union, 
 
 45 Fed. Rep 387, 388 
 
 Caskie v. Hamison, 76 Va 520 
 
 Castleman v. Templeman, 41 L. 
 
 R. A 229 
 
 Casto V. Fry, 33 W. Va. . .286, 292, 297 
 
 V. Greer, 44 W. Va 306 
 
 V. Kintzel, 27 W. Va 
 
 „ ••••. ...126,498,500 
 
 Castor V. Davis, 120 Ind 595 
 
 Catlin V. Wilcox Silver Plate Co., 
 
 123 Ind 229 
 
 Catt v. Knabe Mfg. Co., 93 Va. . . 284 
 
 Cauthom v. Coxirtney, 6 Gratt 40 
 
 Cavanagh v. Dooley, 6 Allen 39 
 
 Cavendish v. Fleming, 3 Munf 241 
 
 Cecil V. Clark, 44 W. Va 503 
 
 V. Early et al., 10 Gratt 154 
 
 Cecil National Bank v. Thurber, 
 
 8 C. C. A 5 
 
 Central City Brick Co. v. N. & W. 
 
 R. Co., 44 W. Va 699, 702 
 
 Central Ins. Co. v. Pro. Ins. Co., 
 
 14 N. Y ■ 32 
 
 Central Land Co. Laidley, 32 W. 
 
 Va ....149. 437, 438 
 
 Central Trust Co. v. East Tenn. V. 
 
 & G. R. Co., 59 Fed. Rep 231 
 
 V. Kneeland, 138 U. S 630 
 
 V. Moran, 56 Minn 341 
 
 V. Railway Co., 42 Fed. Rep. 696 
 
 Chafe V. Maker, 17 R. 1 184 
 
 Chamberlayne v. Temple, 2 Rand. 
 
 283, 285, 297 
 
 Chambers v. Chambers, 87 Ky 183 
 
 V. Wareen, 13 111 774 
 
 Champion v. Brown, 00 Johns Ch. 536 
 Champney v. Blanchard, 39 N. Y. 313 
 
 Chaplain v. Conant, 3 W. Va 5x2 
 
 Chapline v. Brown, 83 Iowa, 265, 266 
 
 V. Overseer Poor, 7 Leigh 35 
 
 Chapman v. Armistead, 4 Munf . . 144 
 
 v. Brewer, 62 N. W. Rep 692 
 
 v. Chapman, 92 Va 481, 488 
 
 V. Mad River & L. E. R. Co., 
 
 6 Ohio St 148 
 
 V. P. & S. R. Co., 18 W. Va. 77 
 
 V. Price, 83 Va 122, 124 
 
 V. Railroad Co., 26 W. Va. . . 
 
 70, 158 
 
 V. Rockford, 89 Wis 39 
 
 V. Schroeda, 10 Ga 132 
 
XXXIV 
 
 TABLE OF CASBS. 
 
 PAGE 
 Chapman v. Succession of Wilson, 
 
 5 Rep 460 
 
 Chapman's Adm'r v. Sheppard's 
 
 Adm'r, 24 Gratt 176, 245 
 
 Chappel V. Rockaway, 21 Wend. . 265 
 
 V. Stewart, 37 L. R. A 4 
 
 V. Trent, 90 Va 95 
 
 Chapsky v. Wood, 26 Kan 267 
 
 Charleston L. & M. Co. v. Brock- 
 
 meyer, 23 W. Va 407 
 
 Chase v. Bradley, 26 Me 166 
 
 V. Miller, 88 Va 89 
 
 V. Oskosh, 81 Wis 3^7 
 
 Chatham Furnace Co. v. Moffatt, 
 
 147 Mass 259i 460 
 
 Cheely v. Brewer, 7 Mass 73 
 
 V. Clayton, no U. S 673 
 
 Chesman v. Cummings, 142 Mass. 53s 
 Chesapeake & Ohio R. Co. v. Mil- 
 ler, 19W. Va 372 
 
 V. Patton, 5 W. Va 348, 391 
 
 Chewer v. Wilson, 76 U. S 59^ 
 
 Chicago & L. E. R. Co. v. Cason, 
 
 133 Ind 227 
 
 Chicago, etc., R. Co. v. Quincy, 
 
 139 111 369 
 
 Chicago, etc., Co. v. United States 
 
 Co., 57 Pa. St 219,226 
 
 Chicago Trust & Sav. Bank v. 
 
 Kmmare, 174 111 513 
 
 Chichester v. Vass, I Mnnf 772 
 
 Childress V. Morris, 23 Gratt.. 772, 773 
 
 Childs V. Hagerty, 36 W. Va 286 
 
 V. Hurd, 32 W. Va. .296, 297, 725 
 
 Chinn v. Mnrry, 4 Gratt 319 
 
 Chipley v. Keaton, 65 N. C 513 
 
 Chipman, etc., R. Co. v. Chicago, 
 
 etc., R. Co., 75 Wis 267 
 
 Chipman v. McClellan, 159 Mass.. 305 
 Chippewa Lumber Co. v. Phoenix 
 
 Ins. Co., 80 Mich 39 
 
 Chowning v. Cox, i Rand 636 
 
 Chrisman v. Chrisman, 16 Or 98 
 
 Christian & Gunn v. Keene, 80 
 
 Va 519, 525 
 
 Christian v. Vance, 41 W. Va. .83, 100 
 
 V. Yancy, 2 P. & H 634 
 
 Chronister v. Bushey, 7 Watts & 
 
 S 168 
 
 Church V. Church, 16 R. 1 670 
 
 V. Guthrie, 86 Va 751, 752 
 
 V. Proctor, 13 C. C. A. (U. 
 
 S.) 457 
 
 Chute V. Washbume, 44 Minn 685 
 
 Cicero Lumber Co. v. Cicero, 176 
 
 111 367 
 
 Cire V. Hartman, 84 Va 599 
 
 Ciiode V. Buchannon, 22 Gratt. . . 53 
 Cissell V. Johnson, 22 Wash. L. 
 
 Rep 58 
 
 PAGE 
 
 City Bank v. Merritt, 13 N. J. L. . 56 
 City of Chicago v. Cameron, 120 
 
 111 "7 
 
 V. Sexton, 115 111 I45 
 
 City of Des Moines v. Water 
 
 Works, 64 N. W. Rep 346 
 
 City of Erie v. Knapp, 29 Pa. St.. 73 
 City of Hartford V. Chipman, 21 
 
 Conn 5 
 
 City of Moundsville v. O. R. R. 
 
 Co., 37 W. Va 345, 347. 3^9 
 
 City of Richmond v. Crenshaw, 75 
 
 Va 372 
 
 City of Topeka v. Thomas, i Kan. 
 
 App 692 
 
 City of Wheeling v. Campbell, 12 
 
 W. Va 374 
 
 Claflin V. Balance, 91 Ga 295 
 
 V. Foley, 22 W. Va..292, 293, 630 
 
 Clapp V. Walker, 25 low a 73 
 
 Claiborne v. Henderson, 3 H. & 
 
 M 132. 133 
 
 Clark V. Field, 13 Vt 595 
 
 V. Piggins, 31 W. Va 304 
 
 V. Fosdick, 118 N. Y 302 
 
 V. Gordon, 35 W. Va 303, 539 
 
 V. Hardgrove, 7 Gratt 12, 13 
 
 V. Henry, 9 Mo 8 
 
 V. Hogeman, 8 W. Va 513 
 
 V. King, 34W.Va 286, 298 
 
 V. Lindsay, 9 L. R. A 107, 504 
 
 V. Martin, 49 Pa. St 347 
 
 V. Moore, 76 Va 554 
 
 V. Oliver, 91 Va 764 
 
 Clay V. City of St. Albans, 43 W. 
 
 Va 427,439 
 
 V. Deskins, 36 W. Va 548, 549 
 
 V. Neilson, 5 Rand 69 
 
 V. Robinson, 7 W. Va 162 
 
 Claybome v. Holland, 88 Va 761 
 
 Clayton v. Barr, 34 W. Va 83 
 
 Claussen v. Fultz, 13 S. C 61 
 
 Clements v. Moore, 6 Wall 280 
 
 Clements v. Tillman, 80 Ga 456 
 
 Cleveland v. Hallett, 6 Cush 759 
 
 Clevinger v. Miller, 27 Gratt 553 
 
 Clifton V. Montague, 40 W. Va. .. 154 
 
 Cloud V. Gregsley, 125 111 457 
 
 Clough V. Clough, 117 Mass 312 
 
 Cloughton V. Forrest, 17 Mo 513 
 
 Coal Co. V. Bell, 38 W. Va 80, 89 
 
 Coales V. Cheever, i Cowp 130 
 
 Coalter v. Bryan, i Gratt 
 
 ^ , • • • ■ V : • ■ -572. 575, 576, 577 
 
 Coatney v. Hopkms, 14 W. Va. ... 426 
 
 Cochran v. Paris, ll Gratt 634 
 
 V. Richmond & A. R. Co., 91 
 
 Va 764 
 
 V. Street, 1 Wash 472 
 
 Cocke V. Gilpin, i Rob. Rep 397 
 
TABtE OF CASES. 
 
 XXXV 
 
 PAGE 
 
 Cocke V. Harrison, 3 Rand 164 
 
 V. Phillips, 12 Leigh 134, 677 
 
 Coda V. Thompson, 39 W. Va..69, 71 
 
 Coffey V. Emigh, lo L. R. A 417 
 
 Cofiman v. Coffman, 79 Va 127 
 
 V. Hendrick, 32 W. Va. ..93, 577 
 
 V. Langston, 21 Gratt 421 
 
 Cogbill V. Boyd, 77 Va 761, 764 
 
 Cohn V. Ward, 32 W. Va 
 
 289, 295, 296, 297, 304 
 
 Colbert v. Daniels, 32 Ala 153 
 
 Colberbert v. Shepperd, 89 Va. ... 31 
 Coldiron v. Asheville Shoe Co., 93 
 
 Va 616 
 
 Colev. Cunningham, 133 U. S.... 229 
 
 V. Maxley, 12 W. Va 517 
 
 — V. Smith, 24 W. Va 714 
 
 V. Van Riper, 44 111 121 
 
 Coleman v. Cocke, 6 Rand . 483 
 
 V. Parker, 114 Mass 312 
 
 V. Parran, 43 W. Va 745 
 
 V. Pearce, 26 Minn 142 
 
 V. Syne's Ex'rs et al., 4 Call. 253 
 
 V. Waters, 13 W. Va 53, 77 
 
 V. Whitney, 62 Vt 718 
 
 Coler V. Dwight School Tp., 3 N. 
 
 Dak 146 
 
 Colgin V. Redman, 20 Ala 600 
 
 CoUins V. Janey, 3 l^eigh 675 
 
 V. Riggs, 81 U. S 731 
 
 V. Spears, i Miss. (Walk.).. 165 
 
 Collis V. Sutton, 94 Va 105 
 
 Coloma V. Eaves, 92 U. S 146 
 
 Colquham v. Atkinson, 6 Munf . .. 
 
 480, 721 
 
 Colton V. Fields, 131 111 191 
 
 Columbus V. Alger, 44 Ohio St. . .. 143 
 V. Columbus St. Ry. Co., 45 
 
 Ohio St 144 
 
 Columbus Electric Co. v. Dixon, 
 
 46 Minn 119 
 
 Colwell V. Caperton, 27 W. Va.. . 468 
 
 Combs V. Candler, 95 Va 553 
 
 Commercial Bank v. Nealy , 39 Me. 74 
 Commonwealth v. Fry, 4 W. Va. . 70 
 
 V. Graham, 157 Mass 341 
 
 V. Smith, 00 Mass 723 
 
 Compton V. Patterson, 28 S. C. . . . 604 
 
 Conant v. Buessing, 23 Fla 84 
 
 V. National State Bank, 121 
 
 Ind ;...459. 460 
 
 Conaway V. Odbert, 2W.Va.,555, 5^1 
 Concise v. Bartels, 46 Pac. Rep. .. 72° 
 
 Conger v. Dean, 3 Iowa 35 
 
 Conn., etc., Ins. Co. v. N. Y. &1N. 
 
 H. R. Co., 25 Conn 559 
 
 Conn. Fire Ins. Co. v. Hamilton, 
 
 8C C A 39 
 
 Connell'v.'Conneil, 32 W. Va. . . . 488 
 V. Wilhelm, 36 W. Va..i54, 499 
 
 PAGE 
 
 Conoly V. Gale, 61 Ala 578 
 
 Conoway v. McCann, 30 W. Va. . 291 
 
 Conrad v. Buck, 21 W. Va ,518 
 
 V. McGee, 9 Yerg 68 
 
 Cons. L. & W. Co. V. Murray, 80 
 
 Fed. Rep 387 
 
 Cons. Mining Co. v. Miners' 
 
 Union, 51 Fed. Rep 387 
 
 Conway v. Green, i Har. & J. 
 
 (Md.) 168 
 
 V. Sweeney, 24 W. Va 
 
 • • 478, 529, 536, 543 
 
 Cook V. Bartholomew, 60 Conn . . 
 
 718, 719 
 
 V. Collinridge,'i Jac 166 
 
 V. l/osher, 19 C. C. A 418 
 
 V. Walling, 2 L. R. A 149 
 
 Cooper V. Burr, 45 Barb 312 
 
 V. Cooper, 77 Va 178 
 
 V. Hepburn, 15 Gratt.. 208, 235, 403 
 
 V. Schlesinger, iii U. S 260 
 
 V. Scott, 62 Pa. St 184 
 
 Coopers v. Wolf, 15 Ohio St 630 
 
 Copeland v. Copeland, 21 S. E. 
 
 Rep 595 
 
 V. Hall, 29 Me 36 
 
 Corbett v. Imp., etc., Ass'n, 109 
 
 Cal 700 
 
 Corbin V. Mills' Ex'rs et al., 19 
 
 Gratt 252 
 
 Corbit V. Smith, 7 Iowa 206 
 
 Core V. Bill, 20 W. Va 351 
 
 V. Cunningham, 27 W. Va. . . 
 
 283, 295, 298 
 
 V. Strickler, 24 W. Va. . .396, 397 
 
 V. Wigner's Heirs, 32 W. Va. 
 
 143. 533. 534 
 
 Corl V. Monkhouse, 47 N. J. Eq. 184 
 
 Cornish v. Bryan, 10 N. J. Eq 726 
 
 Coryell v. Klehm, 157 111 419 
 
 Corothers v. Board of Education, 
 
 6 Pick 31 
 
 V. Harris, 23 W. Va 275, 296 
 
 Cosgray v. Core, 2 W. Va 487 
 
 Cosner v. McCrum, 40 W. Va 427 
 
 Cosner's Adm'r v. Smith, 36 W. 
 
 Va 65 
 
 Coster V. Griswold, 4 Edw. Ch. . . 726 
 
 Cottreel's Appeal, 23 Pa 556 
 
 Couch V. Eastham, 27 W. Va 
 
 90. 467.577 
 
 V. Eastham, 29 W. Va. . . 182, 184 
 
 Couro V. Port Henry Iron Co., 12 
 
 Barb 599 
 
 Covey V. Porter, 22 W. Va 503 
 
 Coville V. Gilman, 13 W. Va 516 
 
 Cowardin v. Anderson, 78 Va 128 
 
 Cox V. Cox, 27 S. E. Rep 755 
 
 V. Cox, 2 Port. (Ala.) 775 
 
 V. Douglass, 20 W. Va.352, 354, 355 
 
XXXVl 
 
 TABI<K OF CASBS. 
 
 PAGB 
 
 Cox V. Homer, 43 W. Va 635, 725 
 
 V. Jagger, 2 Cowp 134 
 
 V. Livingston, 2 Watts & S. . 34 
 
 - — V. McMuUen, 14 Gratt 502 
 
 V. Price, 22 S. E. Rep 413 
 
 V. Railroad Co., 44 Cal 697 
 
 V. Volkert, i West 220 
 
 V. Wayt, 26 W. Va 485, 622 
 
 Craft V. Indianapolis D. & W. R. 
 
 Co., 46 N. B. Rep 734 
 
 Crafts V. Mott, 4 N. Y 520 
 
 Craig V. Craig, 3 Barb. Ch 313 
 
 V. Hamilton, 118 Ind 259 
 
 V. HukUl, 37 W. Va 679, 685 
 
 V. McCulloch, 20 W. Va. . . 
 
 r 364,566 
 
 V. Williams, 90 Va 486 
 
 Crain v. Barnes, 1 Md. Ch 8, 182 
 
 Cralle v. Cralle, 79 Va 
 
 ,..581, 582, 662, 663, 665, 672, 673 
 
 V. Cralle, 84 Va 586, 587 
 
 Crane v. Elder, 48 Kan 461 
 
 Cranmer v. McSwords, 24 W. Va. 
 
 194, 195, 416, 462, 522, 558 
 
 Cranston v. Union Trust Co., 75 
 
 Mo 697 
 
 Crawford v. Aultman & Co., 40 S. 
 
 W. Rep 726 
 
 V. Ritchie, 43 W. Va 87 
 
 Crawfordsville v. Boots, 76 Ind. . . 702 
 fcreig's Adm'r V. Boggs et al., 19 
 
 W. Va 467, 533, 534, 535 
 
 Cresap v. Kimble, 26 W. Va 
 
 „ 103. 351. 354 
 
 Crews V. Pendleton, i Leigh 643 
 
 Criger V. Alexander, 33 Gratt 245 
 
 Crim V. Davisson, 6 W. Va 398 
 
 V. Harman, 38 W. Va 65, 66 
 
 V. Post, 41 W. Va.. . .413, 564, 565 
 
 -. — V. Town of Phillippi, 38 W. 
 
 Va 372,374 
 
 PAGS 
 
 Ciislip V. Cain, 19 W. Va 6, 11, 13, 
 
 14. 16, 18, 19, 20, 257, 258 
 
 V. Teter, 43 W. Va 471 
 
 Criss V. Criss, 28 W. Va 646, 647 
 
 Crocker v. Allen, 34 S. C 472 
 
 Crockett v. Doriott, 85 Va 430 
 
 Croft V. Hanover Fire Ins. Co., 40 
 
 W. Va 467 
 
 Crosby v. Berger, 11 Paige 769 
 
 Crotty V. Eagle, 43 W. Va 340 
 
 Crouch V. Puryean, i Rand 130 
 
 Crowv. Lemon & G. Co., 11 So. 
 
 Rep 59 
 
 Crumlish V. Central Imp. Co., 38 
 
 W.Va 554 
 
 V. Railroad Co., 28 W. Va.. . 117 
 
 Crumlish's Adm'r v. Shenandoah 
 
 Val. R. Co., 40 W.Va.. 231, 236, 238 
 Crump v. Commonwealth, 48 Va.. 387 
 
 Cuendet v. Lahmer, i6 Kan 61 
 
 Culross V. Gibbons, 130 N. Y 742 
 
 Cummings v. Cmnmings, 15 N. J. 
 
 Et} 666 
 
 Cnmmmgton v. Belcherton, 4 L. 
 
 R. A 554 
 
 Cunningham v. Cunningham, 30 
 
 W.Va 123, 677 
 
 V. Ward, 30 W. Va 629 
 
 Curlett V. Newman, 30 W. Va 
 
 „ ,; L- • • • ■ • ■^' ^' ^> 276 
 
 Curlmg V. Hyde, 10 Mo 74 
 
 Curry v. Hale, 15 W. Va 70. 78 
 
 V. Hill, 18 W. Va 
 
 (- ^" ■ ■ «• ■ j"^^?; 363, 640, 941, 646 
 
 Curtis V. Ford, 78 Tex 7.i 
 
 V. Hoxie. 88 Wis 64 
 
 V. Portland Sav. Bank, 77 Me. 312 
 
 Cnrton v. Isaacsen,36 W. Va 706 
 
 Custis V. Snead, 12 Gratt 500, soq 
 
 Cuthbert v. Chauvet, 37 N. Y. 
 ®- ^ ' 383 
 
 D. 
 
 Dabney's Adm'r v. Smith's Leg- 
 atee, 5 Leigh 164 
 
 Dale V. Kent, 58 Ind 220 
 
 Damson v. Smith, 37 W. Va 615 
 
 Danah v. Boyce, 62 Mich 5 
 
 Dance v. Seamon, 11 Gratt 634 
 
 Dangerfield v. Smith, 83 Va 341 
 
 Daniel v. Smith, 75 Cal 312 
 
 Daniels v. Daniels, 9 Cal 589 
 
 Dano v. Railroad Co., 27 Ark 697 
 
 Dandridge v. Minge, 4 Rand 173 
 
 Darby v. Galligan, 33 W. Va 286 
 
 v. Gilligan, 37 W. Va. . . .764, 765 
 
 Darling v. Cumming, 92 Va 550 
 
 Darmstadt v. Wolfe, 4 H. M...472, 473 
 
 Dame v. Lloyd, 82 Va 317 
 
 Davenport v. First Cong. Soc, 33 
 
 _ .Wis jgc 
 
 Davies v. Hughes, 86 Va 168 
 
 Davis V. Beaseley, 75 Va 481, 485 
 
 V. Bonney, 89 Va 305 
 
 V. Chapman, 83 Va. .176, 225, 625 
 
 V. Childers, 45 S. C 714 
 
 V. Christian et al., 15 Gratt. 171 
 
 V. Crandall, loi N. Y i86 
 
 V. Davis, 26 Cal 14, 
 
 - — V. Deming, 12 W. Va.. 
 
 — ■v.-iE^ig;v2^i;^5:j;3,7'5,7i7 
 
 V. Handy, 37 N. H 153 
 
TABLE OF CASES. 
 
 XXXVll 
 
 PAGE 
 
 Davis V. Hannan, 21 Gratt 761 
 
 V. Henry, 7 W. Va 574 
 
 V. King, 87 Pa. St 108 
 
 V. Ladoga Creamery Co., 128 
 
 Ind 229 
 
 V. Landcraft, 10 W. Va 273 
 
 V. Maxwell, 27 Ga 38 
 
 V. Newman, 2 Rob. Rep 182 
 
 V. Settle, 43 W. Va 493, 498 
 
 V. Snead, 33 Gratt 229 
 
 V. Stambaugh, 163 111 754 
 
 V. Strange, 86 Va 80, 93, 95 
 
 Davis, etc., Co. v. Murray, 102 
 
 Mich 692 
 
 Davis S. m; Co. v. Dunbar, 29 W. 
 
 Va 286 
 
 Davisson v. Rake, 44 N. J. L. . 183, 184 
 
 V. Rake, 45 N. J. L 183 
 
 V. Waite, 2 Munf 480 
 
 Dawe V. Morris, 159, Mass 259, 459 
 
 Dawson v. Dawson, 20 Mo. App. 662 
 
 V. Hemmerlick, 33 W. Va. . . 193 
 
 Day V. Martin, 78 Va 519 
 
 V. Slaughter, 87 Va 756 
 
 De Camp v. Camahan, 26 W. Va. 
 
 80, 491 
 
 De Cordova v. De Cordova, 41 L. 
 
 T. N. S 166 
 
 De Diemar v. Van Gagener, 7 
 
 Johns 165 
 
 Deely v. Dwight, 132 N. Y 722 
 
 Deems v. Baltimore, 80 Md — 767, 768 
 
 Deem v. Phillipps, 5 W. Va 80, 93 
 
 Deep River & Co. v. Fox, 4 Ired. 
 
 (N. C.) 3 
 
 Deeringv. Adams, 37 Me 759 
 
 Deering & Co. v. Kerfoot, 89 Va.. 129 
 De Estrada v. Water Co., 46 Fed. 
 
 Rep 420 
 
 De Farges v. Ryland, 87 Va 301 
 
 Deford v. Mercer, 34 Iowa 153 
 
 Degraw v. Classon, 11 Paige 608 
 
 Dehon v. Foster, 4 Allen 457 
 
 Deig V. Morehead, no Ind 572 
 
 Del. & H. Canal Co. v. Penn. Coal 
 
 Co.,5oN. Y 39 
 
 Delaplaiu v. Armstrong, 21 W. 
 
 Va 49,66,67,68 
 
 V. Gmbb, 44 W. Va 
 
 93, 94, 97. 98 
 
 V. Wilkinson, 17 ^W. Va 
 
 480,483,484 
 
 Delaware L. & W. R. Co. v. 
 
 Browns, 58 N. Y 385 
 
 Delaware, etc., R. Co. v. Stock 
 
 Yard Co., 43 N. J. Eq 345 
 
 Delehanty v. Warner, 75 111 6 
 
 De La Vega v, Leayne, 64 Tex. . . 508 
 
 De Long V. Stanton, 9 Johns 36, 40 
 
 De Louis v. Meek, 50 Am. Dec. . . 272 
 
 PAGE 
 Deming v. Cotton 'Press & S. Co., 
 
 90 Tenn 559 
 
 V. Darling, 148 Mass 460 
 
 V. Miles, 35 Neb 122 
 
 Den V. Clark, 18 Am. Dec 204 
 
 Dennis v. Dennis, 68 Conn 
 
 656, 662, 670 
 
 Dennison v. Benner, 36 Me 71 
 
 Denny v. Denny, 113 Ind 5 
 
 i V. Garrey, 130 Mass 73 
 
 Denton v. Nanny, 8 Barb 731 
 
 Depue V. Sargent, 21 W. Va, . . .21, 22 
 
 Derby v. Derby, 4 R. 1 182 
 
 Detroit v. Board of Public Works, 
 
 23 Mich 6 
 
 Detroit, etc.. Mills v. Ledwidge, 
 
 162 HI 767 
 
 Devanbaugh v. Devanbaugh, 5 
 
 Paige 651 
 
 Development Co. v. Silva, 125 
 
 U. S 260 
 
 De Witt V. De Witt, 36 Atl. Rep.. 666 
 
 Dexter v. Codman, 14 Mass 575 
 
 Diamond Match Co. v. Roeber, 
 
 106 N. Y 266 
 
 Dickel V. Smith, 38 W. Va 206 
 
 Dickenson v. Bankers' S. & I. Co., 
 
 93 Va... 56s 
 
 Dickerson v. Cologne, 100 U. S. .. 144 
 Dickeshied v. Bank, 28 W. Va.. . . 
 
 310, 311, 313, 314, 315, 781, 784, 785 
 
 Dickey v. McVann, 18 Ala 576 
 
 Dickinson v. Dickinson, 2 Gratt. . 674 
 
 V. Railroad Co., 7 W. Va. . 
 
 257, 603 
 
 Dickinson's Appeal, 152 Mass 617 
 
 Diggs V. Brown, 78 Va 746 
 
 Dillard v. Krise, 86 Va 623 
 
 Dillman v. Nadlehoffer, 119 111.. 
 
 100, 460 
 
 Dinaens v. Clancy, 67 Barb 148 
 
 Dingess v. Marcum, 41 W. Va 508 
 
 Dingles v. Bronson, 14 W. Va 
 
 80,93, 498 
 
 Disch V. Timm, loi Wis 94 
 
 Dishman v. Davidson, 39 S. W. 
 
 Rep 60s 
 
 Dismukes v. Halpem, 47 Ark 501 
 
 Divine v. Harvie, 7 T. B. Mon. 
 
 (Ky.) 73 
 
 Dixon County v. Field, in U. S.. 146 
 
 Doane v. Lockwood, 115 111 100 
 
 Dobbin v. Cordiner, 41 Minn 148 
 
 Dobyns v. McGovern, 15 Mo 8 
 
 V. Rawley, 76 Va 562 
 
 Dock V. Dock, 180 Pa. St 770 
 
 Dodge V. Potter, 18 Barb 485 
 
 Dodson V. Hays, 29 W. Va 
 
 157,505, 534 
 
 V. Swan, 2 W. Va 457 
 
xxxvm 
 
 TABI,E OF CASES. 
 
 PAGE 
 
 Doges V. Lee, 20 W. Va 428 
 
 Doggett V. Hart, 5 Fla 5 
 
 V. Helm, 17 Gratt loi, 415 
 
 Doheny v. Atlantic Dynamo Co. , 
 
 41 W. Va 608 
 
 Dollman v. Moore, 19 L. R. A 73 
 
 Donaghe v. Thomas, 8i Va . 747 
 
 Donahue v. Fackler, 21 W. Va... 407 
 
 V. Tarns, 81 Va 745 
 
 Donaldson v. Lewis, 93 Va 466 
 
 Donnally v. Hemdon, 41 W. Va.. 115 
 
 V. Parker, 5 W. Va 543 
 
 Donner v. Smith, 38 Vt 108 
 
 Doolittle V. Doolittle, 78 Iowa.... 
 
 587, 658, 659 
 
 V. Malcolm, 8 Leigh 41 
 
 Dorian's Appeal, 174 Pa. St.. 310, 311 
 
 Dorr V. Shaw, 4 Johns. Ch 441 
 
 Dorsey v. Kendall, 8 Bush. (Ky.) 406 
 Dorsey V. Monnett, 20 Atl. Rep... 381 
 Doswell V. Buchannon's Ex'r, 3 
 
 Leigh 480, 481 
 
 Dotterer v. Bowe, 84 Ga 73 
 
 Douglass V. Douglass, 41 W. Va. . 291 
 
 V. Feay, 1 W. Va 137, 675 
 
 & McKinney v. Harrisville, 
 
 9 W. Va 372, 373 
 
 V. Saterlee, 11 Johns. Ch 165 
 
 V. Stephenson, 75 Va 
 
 176, 242, 761 
 
 ■ V. Stump, 5 Leigh 164 
 
 ' V. Union Mutual Ins. Co., 
 
 127 111 685 
 
 Douglass Mdse. Co. v. Laird, 37 
 
 W. Va 295 
 
 Dower v. Church, 21 W. Va 
 
 573,575,576, 577 
 
 V. Seeds, 28 W. Va 423, 577 
 
 Downey v. Washbume, 79 Ind 555 
 
 Doyle V. Patterson, 84 Va 42, 46 
 
 V. Welch, 100 Wis 94 
 
 D'Oyly V. Capp et al., 99 Cal 634 
 
 Dreisbach v. Surf ass, 126 Pa. St. . 718 
 Dresser v. Dresser, 46 Me 312 
 
 PAGE 
 
 Drew V. Kimball, 43 N. H 143 
 
 Dryden v. Stephens, 19 W. Va. . . 637 
 
 Dubois V. Dubois, 6 Cowen 456 
 
 Dueber Mfg. Co. v. Young, 155 
 
 111 57 
 
 Duff V. Core, 27 W. Va 36 
 
 Dugan V. Baltimore, 70 'Md 500 
 
 Dugger's Children v. Dugger, 84 
 
 Va 122,488 
 
 Duke V. Griffiths, 9 Utah 144 
 
 Dulin V. McCaw, 39 W. Va. .70, 75, 438 
 Dunavant v. Caldwell & N. R. 
 
 Co., 29 S. E. Rep 696 
 
 Duncan v. Custard, 24 W. Va 
 
 283, 298, 414, 621, 622, 626 
 
 V. Gainey, 108 Ind 169 
 
 V. Harder, 4 Johns. Ch 494 
 
 Dunfee v. Childs, 45 W. Va. . .400, 407, 
 
 599, 600, 602, 605, 606 
 
 Dunham v. Byrnes, 36 Minn 283 
 
 V. Wright, 53 Pa 150 
 
 Dunlap V. Campbell, 5 W. Va. .. 
 
 37,38.40 
 
 V. Hedges, 35 W. Va 219, 221 
 
 V. Steer, 92 Cal 401, 494 
 
 Dunn V. Baxter, 30 W. Va . . . 360, 361 
 
 V. Renick, 40 W. Va 186 
 
 V. Salter, i Duv. (Ky. ) 58 
 
 Dunn's Ex'rs v. Renick, 33 W. 
 
 ^ Va.. 184,193 
 
 Dunscomb v. Dunscomb, 2 H. & 
 
 M. 
 
 753 
 
 Dupree v. Carey, 6 Leigh 677 
 
 Durand v. Gray, 129 111 605 
 
 Dumham v. Alden, 20 Me 144 
 
 Duval V. Ross, 2 Munf 16, 772, 773 
 
 V. Waters, i Bland. (Md.)... 351 
 
 V. Welhnan, 124 N. Y 276 
 
 V. Willman, 16 N. Y 164 
 
 Dwight V. Carson, 2 La. Ann 193 
 
 — - V. Hays^ 150 111 357, 358 
 
 Dyer v. Duify, 39 W. Va 
 
 • • •••.•• 539, 540, 545 
 
 V. Tilton, 23 Vt 4S9 
 
 E. 
 
 Eacho V. Cosby, 26 Gratt 720 
 
 Earle v. Barle, 27 Neb 589 
 
 Early et ux v. Friend et al., 16 
 
 Gratt 504, 505, 506 
 
 East Hampton v. Bowman, 49 N. 
 
 Y. St 83 
 
 Eastin V. Bank of Stockton, 66 
 
 Cal 264 
 
 Eaton V. Eaton, 37 N. J. L 206 
 
 Eckman v. Munnerlyn, 32 Fla.. . . 58 
 
 Eckols V. Hubbard, 90 Ala 84 
 
 Eckstein v. Downing, 64 N. H . . . 2 
 Edgell V. McConaway, 24 W. Va.. 422 
 
 Edgerton v. Edgarton,"i2 Mont. . 
 
 Edmonds v. Crenshaw, i McCord.' 
 
 (S.C.) 168 
 
 V. Venable, i P. ,& H 
 
 , 202, 203, 556 
 
 Edwards v. Chilton, 4 W. Va 493 
 
 V. Culberson, iii N. C 763 
 
 V. Dickson, 66 Tex 141 
 
 V. Edwards, 36 S. W. Rep. .. 224 
 
 V. Thomas, 66 Mo 434 
 
 — - V. Warner, 35 Conn 278 
 
 Effinger v. Kenny, 92 Va 616 
 
TABIDS OF CASES. 
 
 xxxix 
 
 PAGE 
 Eg^n V. liumsden, 2 Disney 
 
 ^. (Ohio) 55 
 
 Eicnenlaub v. St. Joseph, 113 Mo. 145 
 Eichner v. Liverpool, etc., Ins. 
 
 Co., 29 N. Y. S. R 39 
 
 Eisenmeyer v. Santer, 77 111 35 
 
 Elain v. McDonald, 58 Tex 408 
 
 Elaine v. Keen, 4 Leigh 312 
 
 Eldridge v. Hill, 2 Johns. Ch 470 
 
 Elkhart Car Works Co. v. Ellis, 
 
 113 Ind 231 
 
 Elkiaton v. Brick, 44 N. J. Eq. .93, 94 
 Elliott V. Carter et al., 9 Gratt.. . . 
 
 166, 178, 194, 195, 242 
 
 V. Keith, 32 Mo. App 57 
 
 V. Peirsol, 26 U. S 150 
 
 V. Trahem, 35 W. Va 230 
 
 Ellis V. Hill, 162 111 495 
 
 Ellison V. Woody et al., 6 Munf... 188 
 
 Elsey V. McDaniel, 95 Pa 150 
 
 Elwood V. O'Brien, 105 Iowa 97 
 
 Ely V. Dix, 118 111 470 
 
 Elzas V. Elzas, 171 111 587 
 
 Emerson V. Detroit Steel & S. Co., 
 
 100 Mich 64 
 
 Emerson's Appeal, 95 Pa. St 220 
 
 Enders v. Enders, 27 L. R. A 267 
 
 Engle V. Bums, 5 Call 270 
 
 V. Engle, 3 W. Va 130 
 
 Enos V Hunter, 4 Gilman 734 
 
 Ensel V. Levy et al., 46 Ohio St. . 141 
 
 PAGB 
 
 Ensign V. Colbum, 11 Paige 635 
 
 Enson v. Kerch & Gore, 64 Md. . 35 
 Episcopal Soc. v. Churchman, 80 
 
 Va 751, 752 
 
 Eshbach v. Eshbach, 23 Pa. St. . . 654 
 
 Estate of Delauey, 49 Cal 171 
 
 Estell et al. v. McClintic, 11 W. 
 
 W. Va 174, 195, 196 
 
 Estes V. Fry, 22 Mo. App 61 
 
 Eubanks v. Barnes, 93 Va 417, 420 
 
 Evans V. Evans, 4 Eng. Eccl. 
 
 Rep 659 
 
 V. Evans, 41 Cal 655, 665 
 
 V. Johnson, 39 W. Va 
 
 214, 302, 708, 709 
 
 V. McKinsey, 16 Ky 36 
 
 V. Saul, 8 Martin 59 
 
 — — - V. Snyder, 64 Mo 153 
 
 V. Taylor, 28 W. Va 381, 382 
 
 Evens v. Jones, 86 Iowa 186 
 
 V. Shroyer, 22 W. Va 174 
 
 Ewing V. Handley, 4 Litt 166 
 
 V. Jones, 130 Ind 755 
 
 V. Litchfield, 91 Va 545, 546 
 
 V. Wilson, 132 Ind 755 
 
 Exchange Bank v. Morrall, 16 W. 
 
 Va 423 
 
 Ex Parte Gibson, 4 Cranch C. C. 33 
 
 Lacey, 6Ves 95 
 
 Lawyer, 124 U. S 6 
 
 Robinson, 21 Wend 5 
 
 F. 
 
 Fagan v. Jones, 2 Dev. & B. (N. 
 
 C.) 186 
 
 Fairfax v. Muse's Ex'rs, 2 Hen. & 
 
 Munf 398 
 
 Fant V. Miller, 17 Gratt 774, 775 
 
 Farland v. Wood, 35 W. Va 
 
 157. 355.384 
 
 Farley v. Tillar, 81 Va 434 
 
 Farmers' Bank v. Corder, 32 W. 
 
 Va 283 
 
 • V. Corder, 9 W. Va 305 
 
 V. Van Metre, 4 Rand 560 
 
 V. Woodford, 34 W. Va. .623, 645 
 
 Farmers' L- & T. Co. v. Railroad 
 
 Co., 127 Ind 696 
 
 Farmworth v. Nosinger, 33 S. E. 
 
 Rep 97 
 
 Fameyhough's Ex'rs v. Dicker- 
 son, 2 Rob. Rep 195 
 
 Famham v. Pamham, 73 111 670 
 
 Farrant v. Level, 3 Atk 35° 
 
 Farrow v. Barker, 3 B. Mon. 
 
 (Ky.) 55 
 
 V. Hays, 51 Md , 58 
 
 Farthington v. Camngton, 116 N. 
 
 c 305 
 
 Farwell v. Becker, 129 111 109 
 
 Farwell Co. v. Hilbert, 30 L. 
 
 R- A 377 
 
 Fast V. Wolf , 38 lU 73 
 
 Fauber's Adm'r v. Gentry's 
 
 Adm'r, 89 Va 196 
 
 Faulkner V. Davis, 18 Gratt.. 208, 209 
 
 V. Harwood, 6 Rand 472 
 
 Fayerweather v. Phoenix Ins. Co., 
 
 118 N. Y 559, 560 
 
 Fayette Land Co. v. L. & N. R. 
 
 Co., 93 Va 710 
 
 Feamster v. Feamster, 35 W. Va.. 764. 
 
 — — V. Tyree, 21 W. Va 601 
 
 V. Withrow, 12 W. Va 
 
 522. 562, 6n 
 
 Peckheimer v. Nat. Exchange 
 
 Bank, 79 Va 632 
 
 Feeney v. Howard, 79 Cal 749 
 
 Fellows V. Spaulding, 141 Mass.. 383 
 
 Fenwick v. Grimes, 5 Cranch 460 
 
 Ferguson v. Bond, 39 W. Va 764 
 
 V. Daugherty, 94 Va 295, 296 
 
 V. Wells, 88 Va 194 
 
 Ferrell v. Allen, 5 W. Va 377, 379 
 
 Ferris v. Ferris, 8 Conn 652 
 
xl 
 
 TABLB OF CASES. 
 
 PAGE 
 
 Ferris v. Spooner, 102 N. Y 735 
 
 Fesler v. Brayton, 14s Ind 451 
 
 Ficklin's Adm'r v. Rixley, 89 Va. 301 
 Fidelity Co. v. Shenandoah Val. 
 
 R. Co., 33 W. Va 714 
 
 Field V. Adriou, 7 Md 5^ 
 
 V. Craig, 8 Allen (Mass.) 27 
 
 V. Leiter, u8 111 501, 502 
 
 V. Lucas, 21 Ga 204 
 
 FiUar v. Tyler, 91 Va 434 
 
 Findlay v. Smith, 42 W. Va 605 
 
 V. Trigg's Adm'r, 83 Va 192 
 
 Findley v. Armstrong, 23 W. Va.. 
 
 538.706 
 
 V. Findley, 42 W. Va 212, 451 
 
 Fink, Brother & Co. v. Denny, 75 
 
 Va 301 
 
 Pinlayson v. Finlayson, 17 Or. . . . 259 
 First M. E. Church v. Brown, 147 
 
 Mass 81, 88 
 
 First Nat. Bank v. Bowman, 36 
 
 W.Va 286 
 
 — V. Distilling Co., 41 W. Va. . 392 
 
 V. Hyer, 32 S. E. Rep 404 
 
 V. Knowles, 67 Wis 305 
 
 V. McMillan, 68 N. W. Rep.. 58 
 
 V. Parsons, 45 W. Va 
 
 309. 524, 525 
 
 Fiscus V. Turner et al., 125 Ind. . . 203 
 
 Fish V. Eastman, 5 N. H 133 
 
 Fishback v. Ball, 34 W. Va 
 
 90,447,468, 539, 551 
 
 Fishbume v. Baldwin, 32 S. E. 
 
 Rep 401 
 
 V. Ferguson, 85 Va 
 
 89,93, 53i> 545, 574 
 
 Fisher v. Brown, 24 W. Va 535 
 
 V. Clements, 82 Va 135 
 
 V. McNutty, 30 W. Va 706 
 
 V. Tingle, 20 W. Va 483, 645 
 
 Fiske V. Pratt, 157 Mass 575 
 
 Fitch V. Waite, 5 Conn 56 
 
 Fitlow V. Fitlow, 93 Am. Dec. . . . 204 
 
 Fitts]v. Fitts, 14 Tex 592 
 
 Fitzgerald v. Fitzgerald, 47 N. E. 
 
 Rep 754 
 
 Fitzhugh V. Anderson, 2 Hen. & 
 
 Munf 280, 283 
 
 Fitzmaurice v. Mosier, 116 Ind .79, 80 
 Fitzpatrick v. Flannagan, 106U.S. 58 
 Flattery v. Flattery, 68 Pa. St. . . . 666 
 Fleming v. Guthrie, 32 W. Va. .6, 390 
 V. Holt, 12 W. Va 
 
 534, 570, 641, 642 
 
 V. Townsend, 50 Am. Dec. . . 272 
 
 Fleshman v. Holyman, 27 W. Va. 
 
 641, 755 
 
 Fletcher v. Grover, 11 N. H 107 
 
 ■ V. McGill, no Ind 143 
 
 V. Tnttle. 151 HI 6 
 
 PAGB 
 
 Flickwer's Estate, 136 Pa. St 184 
 
 Florey v. Florey, 24 Ala 577 
 
 Floyd V. Floyd, 49 Am. Dec 94 
 
 V. Harding, 28 Gratt 531 
 
 Fluharty v. Beatty, 22 W. Va 
 
 40, 41, 43, 44, 45, 46 
 
 Flynn v. Jackson, 93 Va 297, 301 
 
 Foley V. Green, i N. E. Rep 276^ 
 
 V. Ruley, 43 W. Va 607, 610 
 
 Folsom V. Evans, 5 Minn 219 
 
 Foote V. Despain, 87 111 474 
 
 Ford V. Euker, 86. Va 546, 549 
 
 Fore V. Taster, 86 Va 465 
 
 Foreman v. Jurray, 7 Leigh 328 
 
 Forkes v. Electric Co., 23 Pac. 
 
 Rep 693, 696 
 
 Forney v. Ferrell, 4 W. Va. 
 
 93, 95, 576- 
 
 Forqueran v. Donnally, 7 W. Va.. 83 
 Forsyth v. City of Wheeling, 19 
 
 W.Va 374, 377 
 
 Forster v. Newton, 46 Miss 509- 
 
 Fosdick V. Schall, 99 U. S 221 
 
 Foster v. Wrefing, 20 Mo. App. . . 701 
 
 Foushee v. Lea, 4 Call 472, 473, 
 
 Fowler v. Alexandria, i Heisk. 
 
 (Tenn. ) 520- 
 
 V. Bowery Savings Bank, 113 
 
 N. Y 763, 
 
 V. Lewis, 36 W. Va 451, 644 
 
 V. Parsons, 143 Mass 143 
 
 Fox V. Drewry, 35 S. W. Rep 151 
 
 V. Foster, 87 Va 420 
 
 V. Jones, I W. Va. . .317, 426, 427 
 
 V. Storrs, 75 Ala 756- 
 
 Fraker v. Houck, 36 Fed. Rep 417 
 
 Francis v. Francis, 31 Gratt 588 
 
 Frank & Co. v. Bruneman, 8 W. 
 
 Va 348, 349. 
 
 Frame v. Frame, 32 W. Va 
 
 531, 532, .S50 
 
 Frank v. Hicks, 35 Pac. Rep 630. 
 
 V. Shipley, 22 Or 575 
 
 Franklin V. Cannon, i Root 485 
 
 V. Puttin, 5 Madd 347 
 
 Franklin Nat. Bank v. Whitehead, 
 
 149 Ind 230- 
 
 Frazer v. East Tenn., V. & G. R. 
 
 Co., 40 Am. & Eng. R.R. Cas. 723 
 Frederick v. Frederick, 31 W. Va. 494. 
 
 Freelove v. Cole, 41 Barb 276 
 
 Freeman v. Camplsell, i N. Y. St. 62. 
 
 V. Carpenter, 147 Mass 381 
 
 V. Curtis, 81 Am. Dec 89. 
 
 V. Hartman, 45 HI 121 
 
 Freer v. Stotenbin, 36 Barb 130 
 
 French v. French, 8 Ohio 99 
 
 V. Townes, 10 Gratt 644 
 
 Fricker t. Peteps, 21 Fla 226 
 
 Fried V. Brown, 55 Ind.. 206 
 
TABtB OF CASES. 
 
 xK 
 
 PAGE 
 Friedlander v. Pollock, 5 Coldw. 
 
 (Tenn.) 59 
 
 Fritts V. Fntts, 136 lU 654 
 
 Frost V. Beekman, 1 Johns. Ch. . . 480 
 
 V. Dingier, 118 Pa. St 93 
 
 V. Spitley Bank, 30 U. S. L. 
 
 ed 83 
 
 Frotingham v. McKusick, 24 Me. 727 
 
 Fry V. Casto, 33 W. Va 298 
 
 V. Sto-wers, 92 Va 159 
 
 Frye rv. Rishell, 84 Pa 149 
 
 G 
 
 Gage V. Abbott, 99 Ul 83, 88 
 
 V. Rohrback, 56 111 87 
 
 Gaines v. Fnentes, 92 U. S 572 
 
 V. Green Pond Iron Min. Co., 
 
 33 N. J. Eq 130 
 
 V. Thompson, 74 U. S 367 
 
 Galbraith V. Lunsford, 87 Tenn.. 148 
 Gallagher v. Gallagher, 31 W. 
 
 Va 53i>532, 533 
 
 V. Gallagher, 89 Wis 591 
 
 Galland v. Galland, 38 Cal 589 
 
 Gallatin, etc., Co. v. Davis, 44 W. 
 
 Va 536 
 
 Gallego V. The Att'y Gen'l, 3 
 
 Leigh 751 
 
 Gamble v. Hamilton, 31 Fla 83 
 
 Gangrere's Estate, 14 Pa. St 204 
 
 Gano V. Fish, 43 Ohio St 314 
 
 Gapen v. Gapen, 41 W. Va 
 
 418,545, 758 
 
 Garden & Co. v. Bodwing, 9 W. 
 
 Va 292 
 
 Gardner et al. v. Hardy et al., 12 
 
 Gill. & J 472 
 
 Gardner v. Johnson, 9 W. Va 293 
 
 V. Strower, 81 Cal 345 
 
 Garland v. Garland, 24 S. E. Rep. 417 
 
 V. Rives, 4 Rand 257 
 
 V. Smiley, 51 N. J. Eq 185 
 
 Garlick v. Strong, 3 Paige 302 
 
 Gamsey v. Livingston, 7 Wend. . 494 
 
 Garrett v. Carr, 6 Rob. Rep 332 
 
 V. Carr, 3 Leigh 181 
 
 Garth V. Cotton, i Ves 350 
 
 Garver v. Miller, 16 Ohio St. .302, 303 
 
 Garvin v. Squires, 9 Ark 5 
 
 Gaskin v. Balls, L. R. 13 Ch. Div. 347 
 
 Gass V. Gowing, 5 Rich. L 68 
 
 Gasser v. Sun Fire Office, 43 Minn . 39 
 Gassett v. Grout, 4 Mete. (Mass.). 73 
 Gates & Bro. v. Cragg, 11 W. Va. 625 
 
 Gates v. Hester, 81 Ala 150 
 
 V. Parmly, 66 N. W. Rep 684 
 
 v. Railroad Co., 53 Conn 683 
 
 v. Whetstone, 8 S. C 167 
 
 PAGB 
 
 Fudge v. Payne, 86 Va 466 
 
 Fuller V. Griffith, 60 N. W. Rep. . 634 
 Fuller & Co. v. McHenry, 83 Wis. 427 
 Fulleur v. Detroit F. & M. Co., 1 
 
 L. R. A 470 
 
 Fulton V. Johnson, 24 W. Va. .121, 643 
 Fultz V. Davis, 26 Gratt. .413, 636, 646 
 
 Funk V. Renchler, 134 Ind 206 
 
 Furgeson v. Jones, 17 Or 159 
 
 Furlong v. Sandford, 87 Va 80, 93 
 
 Gatewood v. Gatewood, 75 Va. . . . 
 
 •••• 557. 726, 731 
 
 Gault V. Walhs, 53 Ga 6 
 
 Gavender v. Waddingham, 5 Mo. 
 
 App 100 
 
 Gavin v. Curtin, 171 111. .208, 444, 446 
 
 Gay V. Hancock, 4 Rand 636 
 
 Gayle v. Ennis, i Tex 167 
 
 Genin v. Ingersoll, 11 W. Va 566 
 
 Gentry v. Gentry, 87 Va 
 
 535,536, 548, 550 
 
 George v. Cooper, 15 W. Va 127 
 
 Gerbcr v. Sharp, 72 Ind 555 
 
 Giant Powder Co. v. Railroad Co., 
 
 8 :,. R. A 693, 696 
 
 Gibboney v. Kent, 82 Va 416, 417 
 
 Gibson v. Crehore, 5 Pick 731 
 
 v. Green, 89 Va 416, 418 
 
 v. Jones, 5 Leigh.. . .361, 636, 641 
 
 Gilbert v. Gilbert, 58 Am. Dec.. . . 94 
 Gilchrist v. Beswick, 33 W. Va. . . 
 
 715, 716 
 
 Gilkerson & Co. v. Salinger, 16 L. 
 
 R. A 434 
 
 Gillam v. Arnold, 35 S. C 472 
 
 Gill V. Barbour, 80 Va 407 
 
 V. Harden, 48 Ark 143 
 
 Gillenwaters v. Campbell, 142 Ind. 339 
 
 V. Miller, 49 Miss 32 
 
 Gillespie v. Bailey, 12 W. Va 
 
 80, 99, 338, 339, 494, 510 
 
 Gilliam v. Moore, 4 Leigh 127 
 
 Gillilan v. Luddington, 6 W. Va.. 526 
 Gilman v. Hudson River Boot[^and 
 
 Shoe Co., 84 Wis '. . . . 229 
 
 Gilmer v. Baker, 24 W. Va 175, 525 
 
 Gilpatrick v. Glidden, 81 Me 750 
 
 Glascock V. Brandon, 35 W. Va. . . 
 
 139, 298, 299, 300 
 
 Glass V. Dunn, 17 Ohio St 186 
 
 V. Greathouse, 20 Ohio St 168 
 
 Glassel v. Thomas, 3 Leigh 71, 72 
 
 Glenn v. Blackford, 23 W. Va 394 
 
 V. Morgan, 23 W. Va 370, 524 
 
 Glidden v. Strupler, 62 Pa 150 
 
xlii 
 
 TABLE OF CASES. 
 
 PAGE 
 Gloucester I. & G. Co. v. Cement 
 
 Co., 154 Mass 265 
 
 Goddin v. Bland, 87 Va 29 
 
 V. Vaughn, 14 Gratt 534 
 
 Godfrey v. Thornton, 67 Wis 149 
 
 Goff V. Price, 42 W. Va 632, 705 
 
 Gold V. Marshall, 76 Va 520 
 
 Gooche V. Green, 102 111 501 
 
 Goode V. Love, 4 I^eigh 476 
 
 Goodenough v. Spencer, 15 Abb. 
 
 Pr 276 
 
 Goodman v. Henry, 42 W. Va 66 
 
 Goodrich v. Tenney, 144 lU 267 
 
 Goodwin v. Bartlett, 43 W. Va.... 532 
 
 V. Miller, 2 Munf 534 
 
 Goolsby V. St. John, 25 Gratt 472 
 
 Gordon v. Butler, 105 U. S 260 
 
 V. Cannon, 18 Gratt 634, 636 
 
 V. Fitzhugh, 27 Gratt 645 
 
 V. Tucker, 6 Me 41 
 
 Gore V. Clark, 37 S. C 750 
 
 V. Jeness, 19 Me 726 
 
 V. Kremer, 117 HI 5 
 
 V. Ray, 73 Mich 305 
 
 Gormley v. Clark, 134 IT. S 5 
 
 Gosden v. Tucker's Heirs, 6 Munf. 139 
 Goshom V. Snodgrass, 17 W. Va. 
 
 ...277, 280, 285, 286, 288, 295, 303 
 
 Gould V. Crow, 57 Mo. App 673 
 
 V. Steinberg, 105 111 83 
 
 Gousd V. Bank, 86 N. Y 118 
 
 Gracey v. Meyers, 15 W. Va 441 
 
 Grady v. Wolsner, 47 Al 357 
 
 Gra£f v. Castleman, 5 Rand 763 
 
 V. Ponnett, 31 N. Y 608 
 
 Grafton & G. R. Co. v. Davisson, 
 
 45 W. Va 379, 473, 474, 477 
 
 Graham v. Citizens' Nat. Bank, 45 
 
 W.Va 473 
 
 Grafton v. Reed et al., 26 W. Va.. 
 
 26,27 
 
 Graham v. Fla. L. & M. Co., 33 
 
 Fla 84 
 
 V. Hendren, 5 Munf 530 
 
 V. McCall, 5 Munf 530 
 
 V. Pierce, 19 Gratt 505 
 
 Cranberry v. Granberry, i Wash. i8i 
 Grand Island Baking Co. v. Wright, 
 
 53 Neb 434 
 
 Grant v. Sutton, 90 Va 299 
 
 Grantham v. Lucas, 15 W. Va 
 
 219, 221, 231 
 
 Lucas, 24 W. Va 617 
 
 Grantland v. Wright, 5 Munf 11 
 
 Grape Creek Coal Co. v. Farmers' 
 
 Co., 63 Fed. Rep 630 
 
 PAGE 
 
 Gratt V. Wiggins, 23 Cal 619 
 
 Grattan.v. Grattan, 18 111 318 
 
 Graves v. Graves, 36 Iowa 589 
 
 Graves v. Graves, 50 Ohio St 589 
 
 Graybill v. Barugh, 89 Va. . . .529, 546 
 
 Grayson v. Moncure, i Leigh 135 
 
 Greathouse v. Greathouse, 32 S. 
 
 E. Rep 350 
 
 Green v. BeckvTith, 38 Mo 55 
 
 V. Green, 34 L. R. A 580, 590 
 
 V. Massie, 21 Gratt 473 
 
 V. Railroad Co., ii W. Va. . . 398 
 
 V. Spaulding, 76 Va 5 
 
 V. Winter, 1 Johns. Ch 229 
 
 Green's Adm'rv. Thompson et al., 
 
 84 Va 194, 198 
 
 Greenbrier Exposition Co. v. 
 
 Squires, 40 W. Va 114 
 
 Greenbrier Lumber Co. v. Bard, 
 
 30 W.Va 113 
 
 Greer v. O'Brien, 36 W. Va 298 
 
 Gregory v. Peoples, 80 Va 154, 278 
 
 Gribben v. Maxwell, 34 Kan 205 
 
 Griffin v. Birkhead, 84 Va 276 
 
 V. McCauley, 7 Gratt 632 
 
 Griffing v. Pintard, 25 Miss 562 
 
 Griffith V. Griffith, 162 111 652 
 
 V. Hilliard, 64 Vt 383 
 
 Griggs V. Doctar, 30 L. R. A 377 
 
 V. Veghte, 
 
 Grigsby v. Osborne, 82 Va 532 
 
 Grinberg v. Singerman, 90 Va 69 
 
 Grinnan v. Edwards, 21 W. Va. . 
 
 , , 7y S'^S 
 
 Grizzle v. Sutherland, 88 Va .' 549 
 
 Grogan v. Egbert, 44 W. Va 229 
 
 Grosvenor v. Athens, 6 Ohio 605 
 
 Groth v. Groth, 79 111. App 593 
 
 Grove v. Judy, 24 W. Va 599, 600 
 
 Grubb V. Starkey, 90 Va 
 
 ^ •••••■•■; 446, 471, 550, 574 
 
 Grym v. Byrd, 32 Gratt 92 
 
 Guerrant V. Anderson, 4 Rand... 483 
 
 Guffey V. Hukill, 34 W. Va 680 
 
 V. O'Reilley, 5 West 143 
 
 Guffin V. Buckhead, 84 Va 102 
 
 Guild V. Hull, 127 HI 98 
 
 Guggenheimer v. Lockridge, 39 
 
 W. Va 604, 605 
 
 Gum-Elastic Roofing Co. v. Pub 
 
 Co., 30L. R. A .■ 377 
 
 Gusman v. Gusman, 140 Ind 582 
 
 Gustafson v. Rusetmeyer, to 
 
 Conn 450 
 
 H. 
 
 Haack v. Weiken, 118 N. Y 674 
 
 Hackney v. State, 357 356 
 
 Hadden v. Hadden, 36 Fla .rS-. 
 
 Haffey v. Birchetts, 11 Leigh. ..'.'. 412 
 
TABl^B OF CASES. 
 
 xjili 
 
 PAOa 
 
 Haggard v. Haggard, 62 Iowa 665 
 
 Haigh V. U. S. B. & L,. Ass'n, 19 
 
 W. Va 464 
 
 Haines v. Detroit F. & M." Ins. 
 
 Co., 67 N. W. Rep 683 
 
 V. Hall, 17 Or S 
 
 Hale V. Cole. 31 W. Va 80, 102, 276 
 
 V. Hale, 146 111 208, 759 
 
 V. Hale, 90 Va 537 
 
 V. Howe, 21 Gratt 600 
 
 V. W. Va. Oil & Oil Land Co., 
 
 II W. Va 273, 289 
 
 Haley v. Haley, 37 W. Va 669 
 
 Hall V. Bank, 15W. Va 398 
 
 V. The Bank of Virginia, 14 
 
 W.Va 70 
 
 V. Gilbert, 31 Wis 577 
 
 V.Hall, 18 Ga 98 
 
 V. Howard, 33 Am. Dec 314 
 
 ▼. Lowther, 22 W. Va 77 
 
 V. Lyons, 29 W. Va. 477 
 
 V. Morris, 13 Bush. (Ky.). . 510 
 
 V. Nashville, etc., R. Co., 13 
 
 Wall 559 
 
 Hall's S. & L. Co. V. Scites, 30 W. 
 
 Va 695 
 
 Hall et al. v. Taylor, 18 W. Va. . . 360 
 
 V. Vernon, 34 S. E. Rep 497 
 
 V. Wadsworth, 35 W. Va.143, 157 
 
 ▼. Wilkinson, 35 W. Va 421 
 
 Halliday V. Miller, 29 W. Va..294, 341 
 
 Halsey v. Peters, 79 Va 529 
 
 Halstead v. Norton, 38 W. Va 477 
 
 Ham v. Ham, 15 G^ratt 323 
 
 Hamberlain v. Marble, 34 Miss. . . 224 
 
 Hamer v. Sidway, 124 N. Y 740 
 
 Hamilton v. Glenn, 85 Va 647 
 
 Hamilton v. Liverpool, etc., Ins. 
 
 Co., 136 U. S 39 
 
 V. Russell, i Cranch 280 
 
 V. Steele, 22 W. Va 754, 756 
 
 V. Traber, 72 Ind 703 
 
 v: Traber, 27 Atl. Rep 207 
 
 Hamlin v. Royes, 79 Ga 721 
 
 Hammond v. Foreman, 43 S. C. . . 574 
 
 V. Hammond, 2 Bland. (Md). 183 
 
 V. Hopkins, 143 U. S 415 
 
 V. Schiff, 100 N. C 560 
 
 Hampton v. Hampton, 87 Va . 
 
 662, 666, 670 
 
 Hamrick v. State, 134 Ind 203 
 
 Hancock v. Fay, i McMuU. Eq. . . 566 
 Handlan v. Haiidlan, 37 W. Va. . . 669 
 
 V. Handlan, 42 W. Va 749 
 
 Handley v. Heflin, 84 Ala 771 
 
 V. Sydenstricker, 4 W. Va. . . 615 
 
 Handly v. Snodgrass, 9 Leigh 182 
 
 Handy v. Smith, 30 W. Va 620, 631 
 
 Hanly v. Waterson, 39 W. Va 
 
 142, 144, 154, 354, 446, 471 
 
 PAGB 
 
 Hanna's Adm'r v. Boyd et ux., 25 
 
 Gratt 244 
 
 Hanover Fire Ins. Co. v. Lowin, 
 
 28 Fla 39 
 
 Hansford v. Coal Co., 22 W. Va. . 14 
 
 Hansom v. Butler, 48 Me 73 
 
 V. Grahan, 82 Cal 55 
 
 Hansucker v. Walker, 78 Va 409 
 
 Harden v. Wagner, 22 W. Va. . 222, 277, 
 283, 285, 286, 289, 294, 295, 305, 481 
 
 Hardesty v. Taft, 23 Md 6 
 
 Hardie v. Hardie, 162 Pa. St 658 
 
 Harding v. Harding, 144 HI 
 
 582, 583.584 
 
 Hardman v. Orr et ux., 5 W. Va. . 134 
 
 Hardy v. Hardy, 26 Ala 576 
 
 V. McClellan, 53 Miss 219, 220 
 
 Harkey v. Tillman, 40 Ark 379, 474 
 
 Harkins V, Forsyth, 11 Leigh 733 
 
 Harman v. Bryan, 11 W. Va. .491, 492 
 
 V. Harman, 16 111 65 
 
 V. McMullen, 85 Va 624 
 
 V. Smith, 38 Fed. Rep 151 
 
 Harmer v. Price, 17 W. Va 
 
 89, 374, 377, 378, 464 
 
 Harnett v. Harnett, 55 Iowa 659 
 
 Harper v. Bibb, 47 Ala 186 
 
 V. Hawkins, 8 W. Va 512 
 
 V. McVeigh, 82 Va. ; 520 
 
 V. Tidholm, 155 111 685 
 
 Harr V. Shafer, 45 W. Va 83 
 
 Harrell v. Wilson, 108 N. C 450 
 
 Harris v. Elliott, 36 W. Va. . .532, 553 
 
 v. Elliott, 45 W. Va. .745, 746, 749 
 
 v. Harris, 31 Gratt 
 
 580,584,585. 673 
 
 v. Hauser, 26 W. Va 228 
 
 v. Jones, 96 Va 623 
 
 V. Y. S. F. & Sav. Ins. Co., 
 
 146 Ind 225 
 
 Harrison v. Ginnon, 10 Cent. Law 
 
 Journal 572 
 
 V. Harrison, 2 Gratt 741, 751 
 
 V. Harrison, 56 Mich 108 
 
 V. Haskins, 2 P. & H 186 
 
 V. Manson, 95 Va 95, 210, 764 
 
 V. Price, 25 Gratt 526 
 
 V. Walton, 95 Va 
 
 273, 275, 340, 402 
 
 Harrold v. Simmons, 9 Mo 485 
 
 Harshberger v. Alger, 31 Gratt. . . 302 
 
 Hart V. Deamer, 6 Wend 204 
 
 V. Hart, 31 W. Va 
 
 166, 209, 443, 610 
 
 V. Sandy, 39 W. Va 
 
 289, 291, 296 
 
 V. Western R. Coop., 13 
 
 Mete 559 
 
 V. Willis, 77 N. C 184 
 
xliv 
 
 TABLE OF CASKS. 
 
 PAGE 
 Harth v. Harvev, 32 Barb. (N. 
 
 Y.)....- • 6 
 
 Hartley v. Henrietta et al., 35 W. 
 
 Va 360 
 
 V. Foffe, 12 W. Va. .404, 405, 409 
 
 Hartman v. Evans, 38 W. Va 
 
 636. 637.768 
 
 V. Strickler, 82 Va 93, 94 
 
 Hartmeyer v. Gates, I Root 485 
 
 HartweU v. Bice, i Gray (Mass.). 320 
 Harvard College v. Amory, 9 
 
 Kck 761 
 
 Harvey v. Alexander, i Rand 139 
 
 v. Btisbin, 143 N. Y 122 
 
 v. Bronson, I I/eigh 397 
 
 V. Merrill, 150 Mass 457, 458 
 
 V. Seashol, 4 W. Va .377, 380 
 
 V. Steptoe, 17 Gratt 618, 637 
 
 Harwell v. Potts, 90 Ala 219 
 
 Hase V. Beilstein, 179 Pa. St 95 
 
 Harkins v. Forsyth, 11 I<eigli 275 
 
 Hatch V. Kimball, 16 Me 144 
 
 Hatcher v. Crew, 78 Va 301 
 
 V. Hall, 77 Va 416, 417 
 
 Hatfield v. Sneden, 54 N. Y 121 
 
 V. Workman et al., 35 W. Va. 143 
 
 Hauley v. Heritage, 85 Va 107 
 
 Hauser v. King, 76 Va 522, 524 
 
 Haverty v. Haverty-, 35 Kan 33 
 
 Hawker v. Moore, 40 W. Va 107, 
 
 273. 275, 250, 502, 523, 552 
 
 Hawkinberry v. Snodgrass, 39 W. 
 
 Va ; 381 
 
 Hawes v. Oakland, 104 U. S 117 
 
 Hawkins v. Ragsdell, 80 Ky 673 
 
 v. Ward, 30W. Va 440 
 
 Haylard's Estate, 5 Watts & S, ... 183 
 Haymond v. Camden, 22 W. Va. , 78 
 
 Ha3rward v. Bank, 96 U. S 417, 420 
 
 Hayzlitt v. McMillan, 11 W. Va... 392 
 Hazeltine v. Brickey, 16 Gratt. . . 
 
 473.782 
 
 Head v. Muir & Long, 3 Rand 44 
 
 Heatherly v. Farmers' Bank, 31 
 
 W. Va 394 
 
 Heavener v. Morgan, 30 W. Va. . . 
 
 „ ■ •-.:;."• 533. 534, 535. 536 
 
 Hechmer v. Gilligan, 28 W. Va. . 
 
 „ ,; .- 781, 782, 783 
 
 Hedm v. Minneapolis Med. & S. 
 
 Inst., 62 Minn 460 
 
 Hedrick v. TuckwUler, 20 W. Va. 173 
 Heennans v. Montague, 20 S. E. 
 
 Rep 636, 637 
 
 Hefiron v. Ride, 149 111 236 
 
 Heisen v. Heisen, 145 111 134 
 
 Heiskell v. Powells, 23 W. Va 
 
 •••• 621,708,755 
 
 v. Trout, 31 W. Va 746 
 
 Helen v. Chapman, 66 Cal 696 
 
 PAGE 
 Henderson & Co. v< Alderson, 7 
 
 W. Va 137 
 
 Henderson v. Eason, 17 Adol. & 
 
 E 505. 506 
 
 Hendin v. McBeth, 61 Ind 130 
 
 Hendricks v. Fields, 26 Gratt 399 
 
 Heninger v. Heninger, 90 Va... 
 
 586, 658 
 
 Henking v. Anderson, 34 W. Va. 549 
 Henly v. Menefee, 10 W. Va.. .38, 467 
 
 Henry v. Johnson, 28 W. Va 503 
 
 V. Tupper, 29 Vt 731 
 
 Herbert v. Wren, 7 Cranch 135 
 
 Hermance v. James, 47 Barb 654 
 
 Hemsheim v. Levy, 32 La.' Ann. . 62 
 Herreshoffv. Botineau, 17 R. I.. 
 
 265,266 
 
 Herring v. Lee, 22 W. Va 485 
 
 Herzogg v. Gregg, 23 Kan loi 
 
 V. Weiler, 24 W. Va 285 
 
 Hescht V. Calvert, 32 W. Va 
 
 176, 323. 327. 329. 330 
 
 Hethe V. Cocke, i Rand 129, 130 
 
 Hewett V. Bronson, 5 Daly 191 
 
 Hexterv. Bast, 125 Pa. St ■.:.,. 259 
 
 Hickman V. Painter, 11 W. Va^, , 421 
 Hicks V. Roanoke Brick Co., 92 
 
 . Va 692 
 
 Hicksou V. Rucker, 77 Va 403 
 
 Hiett V. Shull, 36 W. Va. . . .80, 96, 97 
 Higginbotham v. Comwell, 8 
 
 Gratt 138 
 
 Higham v. Davis, 108 Ind .... 100 
 
 Highland v. Highland, 5 W, Va, ., 283 
 
 Hill V. Arnold, 79 Ga. 223 
 
 — ^- V. Hoole, n6. N. y! ■. 735 
 
 V. Huston, 15 Gratt ..... 677 
 
 V. Maury, 21 W. Va -. . 456 
 
 y. Morehead, 25 W. Va 606 
 
 — rr- V. Proctor, 10 W.-Va. . ..103, 104 
 
 V. Railroad Co., 11 Wis 696 
 
 V. Winn & Co., 4 W. Va. . . . 426 
 
 HUliary v. Johnson, 11 W. Va.. . 
 
 p 404, 405 
 
 Himan v. Thorn, 32 W. Va 
 
 . 286, 297, 298, 299 
 
 Himrod v. Gilman, 147 HI 726 
 
 Hinchmanv. Ballard, 7 W. Va... 
 
 V. Moms, 29 W. Va 396, 562 
 
 Hinkle V. Hinkle, 34 W. Va. .138, 139 
 Hinkson v. Irwin, 40 W. Va.. . 515 
 Hintonv. EUis, 27 W.Va.... " xo* 
 Hipp V. Babin, 16 U. S r 
 
 W.' "va. ; '. '■' 
 Hitch V. Dk^s,' s'iid. Ch'. '. '. ! ^^^'. 182 
 
 Hissv. Weik, 78 Md. 
 Hissam v. Parrish, 41 
 
 Kite's Ex'rs v. Kite's Legatees,' 2 
 
 Rand 
 
 184 
 
TABI,E OP CASKS. 
 
 XlV 
 
 PAGB 
 Hoaglaud v. Schenk, i6 N. J. I,. . 
 
 182, 183 
 
 Hoback v. Kilgore, 26 Gratt 20, 22 
 
 V. Miller, 44 W. Va 208, 210 
 
 Hobey v. Hobey, i Vem 130 
 
 Hockett V. Bailey, 86 111 149 
 
 Hockmau v. Hockman, 93 Va 621 
 
 Hodder v. RufiSn, i Tarn 411 
 
 Hodge V. Weeks, 31 S. C 716 
 
 Hodges V. Kowing, 7 L. R. A..5, 530 
 
 Hoeffer v. Cogan, 171 HI 758 
 
 Hoffman v. Chippewa County, 77 
 
 Wis 154 
 
 V. Fleming, 43 W. Va 285 
 
 V. Henderson, 145 Ind. . . 287, 288 
 
 V. Ryan, 21 W. Va; 
 
 400, 563, 715, 716. 717 
 
 V. Shields, 4 W. Va 558, 603 
 
 Hogan V. Duke, 20 Gratt 
 
 361. 636, 641, 646 
 
 Hogg V. Dower, 36 W. Va 438 
 
 Hogne V. Bime, 4 W.Va.310, 311, 312 
 
 Hoke V. Davis, 33 W. Va 27, 29 
 
 V. Jones, 33 W. Va 556 
 
 Hoke's Ex'r v. Hoke, 12 W. Va.. 
 
 174, 189 
 
 Holbrook v. Peters & M. Co., 8 
 
 Wash 58 
 
 Holcomb V. Railroad Co., 78 Va. . 539 
 Holden V. Boggess, 20W. Va.130, 137 
 
 V. Scudder, 58 Fed. Rep 207 
 
 Holland v. Barnes, 53 Ala 99 
 
 V.Holland, 2 Mass. Rep 664 
 
 Holliday v. Ward, 19 Pa. St 576 
 
 Hollingshead v. . McKenzie, 8 Ga, 5 
 
 Holman v. Johnson, Cowp. . . 457 
 
 Holroyd v. Wyatt, 9 Jur 411 
 
 Holsberry v. Poling, 38 W. Va. . . 606 
 Holt et al. V. Lambert, 17 Ohio 
 
 St 576 
 
 Holt V. Robertson, i McMul. Eq. 506 
 Honaker v. Board of Education, 
 
 42 W. Va 369 
 
 Hood V. Haden, 82 Va 188 
 
 V. Hood, 100 Mass 673 
 
 Hooff V. Rollins, 5 W. Va 568 
 
 Hook V. Ross, I H. & M 456 
 
 Hooper v. Devanghn, 43 W. Va. . 87 
 
 V. Hooper, 30 W. Va 185 
 
 v. Hooper's Ex'rs, 29 W. Va. 
 
 161, 171, 173 
 
 Hoots V. Graham, 23 111 134 
 
 Hope V. Valley City Salt Co., 25 
 
 W. Va 286, 289, 290 
 
 Hopkins v. Detwiller, 25 W. Va... 707 
 
 V. Joyce, 78 Wis 604 
 
 V. Manchester, 16 R. 1 313 
 
 V. Mollinieux, 4 Wend 32 
 
 V. Oxley Stave Co., 28 C. C. 
 
 A. (U. S.) 388 
 
 PAGE 
 
 Horbach v. Elder, 18 Pa. St 109 
 
 Horn V. Bennett, 135 Ind 683 
 
 V. Perry, 1 1 W. Va 392 
 
 V. Star Foundry Co., 23 W. 
 
 Va 276 
 
 Homer v. Marshall's Adm'x, 5 
 
 Munf 378 
 
 Horrigan v. First Bank, 9 Baxter 
 
 (Tenn. ) 360 
 
 Horsely v. Garth, 2 Gratt 485, 486 
 
 Horton v. Bond, 28 Gratt 520, 562 
 
 •. Fancher, 14 Hun 62 
 
 Hotchkiss v. Fitzgerald, 41 W. 
 
 Va 365, 446,471 
 
 Houghton V. Gray bill, 82 Va. .89, 460 
 Hoult V. Donahue, 21 W. Va... 
 
 448,449 
 
 House V. Alexander, 105 Ind 339 
 
 V. Hamilton, 43 HI 56 
 
 V. Montgomery, i West 143 
 
 Hovey v. East Providence, 17 R. 
 
 1 695 
 
 Hovey v. Hill, 3 Sans 726 
 
 Howard v. Howard, 15 Mass 456 
 
 V. Stevenson, 33 W. Va 
 
 229, 230, 599, 600 
 
 Howe V. Stortz, 27 W. Va 429 
 
 Howell V. Thompson, 34 W. Va. . 
 
 274, 360, 394, 472 
 
 Huckenstein's Appeal, 74 Pa. St, . 359 
 Hudkins v. Haskiris, 22 W. Va. . . 65 
 
 Hudson V. Dismukes, 77 Va 441 
 
 V. Hudson, 4 Rand 319 
 
 V. Hudson, I Atk 165 
 
 V. Hudson, 5 Munf.... 174 
 
 V. Hugan, 56 Kan 98 
 
 V. Putney, 14 W. Va 
 
 • 497, 498, 504 
 
 V. Waugh, 93 Va.. , 467 
 
 Hughes V. Hamilton, 19 W. Va. . 
 
 . . . .404, 405. 406, 427, 4.-i6, 437, 438 
 
 V. Hughes, 44 Ala 670 
 
 V. Jones, ii'6 N. Y 204 
 
 V. Tabb, 3 Gratt 283 
 
 Hukill V. Guffey, 37 W. Va 
 
 87, 680, 684, 685 
 
 V. Myers, 36 W. Va 
 
 ■•.■87, 679, 685 
 
 Hulings V. Hulings Lumber Co., 
 
 38 W. Va 556 
 
 Hull V. Cunningham, i Munf 16 
 
 V. HuU, 35 W. Va 
 
 399, 600, 619, 707, 708 
 
 V. Hull, 20 W. Va 500 
 
 V. Hull, 26 W. Va 209, 245 
 
 Humble v. Curtis, 160 111 726 
 
 Humbolt Tp. V. Long, 92 U. S 146 
 
 Humphrey v. Spencer, 36 W. Va. 
 
 298, 300, 427 
 
 Hundley v. Lyons, 5 Munf 22 
 
xlvi 
 
 TABLE OF CASES. 
 
 PAGB 
 Hunt's Adm'r v. Kite's Adm'r, 20 
 
 W. Va 566 
 
 Hunt V. Hunt, 72 N. Y 4CI 
 
 V. Lane, 9 Ind 109 
 
 Hunter v. Hume, 88 W. Va 632 
 
 V. Hunter, 10 W. Va 
 
 137, 286, 287, 299, 468 
 
 V. Hunter, 19 Barb 317 
 
 V. Johnson, 23 Gratt 641 
 
 V. Robinson, 5 W. Va 421, 422 
 
 V. Stride's Adm'r, 41 W. Va. 427 
 
 V. Waite, 3 Gratt 283 
 
 ■ V. Wilbum, 23 W. Va 525 
 
 Hurd's Case, 9 Wend 74 
 
 Hurley v. Brown, 98 Mass 530 
 
 Hurst V. Coe, 30 W. Va 114, 209 
 
 V. Dnlaney, 87 Va 127, 154 
 
 V. Morgan et al., 31 W. Va. . 183 
 
 Hurt V. West's Adm'r, 87 Va, . . . . 197 
 
 PAGE 
 
 Hutcheson v. Priddy, 12 Gratt. . . 164 
 
 Hutchins v. Hutchins, 93 Va 655 
 
 V. King, I Wall 635 
 
 V. Wildin, 114 Ind 459 
 
 Hutchinson v. Boltz, 35 W. Va. . . 
 
 286, 288, 289 
 
 V. Forst Bank, 133 Ind 291 
 
 Hutson V. Sadler, 31 W. Va 406 
 
 V. Sadler, 38 W. Va 557 
 
 Hntton V. Lockridge, 22 W. Va . . 443 
 V. Lockridge, 27 W. Va 
 
 215, 219, 225, 228 
 
 Hyatt V. Burlington, etc., R. Co., 
 
 68 Iowa 143 
 
 Hyman v. Devereaux, 63 N. C. . . 736 
 Hyman & Co. v. Smith, 13 W. 
 
 Va 404, 408 
 
 Hyre et al. v. Lambert, 37 W. Va. 514 
 
 la^e V. Bossienz, 15 Gratt 701 
 
 Hia V. School Directors, 45 111. 
 
 App 357, 358 
 
 Indiana, etc., R. R. Co. v. Swan- 
 
 nel, 157 111 763 
 
 Ingerson v. Starkweather, Walk. 
 
 (Mich.) 631 
 
 Insurance Co. v. Jenks, 5 Ind 451 
 
 V. Maury, 75 Va 618, 624 
 
 Irick V. Black, 3 N. J. Eq 8 
 
 Iron Co. V. G^diner, 79 Va 529 
 
 Iron Belt B. & L. Ass'n v. Groves, 
 
 96 Va 485 
 
 Irvine v. Greeves, 32 Gratt 122 
 
 Irwin V. Covide, 24 Pa. St 130 
 
 v. Schultz, 46 Pa. St 39 
 
 Isaacs V. Bdwardis, 7 Humph 76 
 
 Ivick V. Fulton, 3 Gratt 467 
 
 Jackson v. Aspell, ao Johns. Ch. . . 134 
 V.Hull, 21 W. Va 
 
 419, 603, 618, 619 
 
 v. Kittle, 34 W. Va 86 
 
 v. Pleasanton, 95 Va 746 
 
 v. Stanfield, 137 Ind 388 
 
 V. Vasburgh, 9 Johns 494 
 
 Jackson Bank v. Drufey, 72 Miss.. 514 
 Jacobs v. Iiocke, 2 Ired. (N. C.) 
 
 Eq ^ 536 
 
 V. Pollard, 10 Cush 109 
 
 James v. Birbridge, 33 W. Va 557 
 
 v. Gibbs, I Pat. & H 644 
 
 V. Morey, 2 Cowp 726 
 
 Jameson v. Deshields, 3 Gratt. ... 71 
 
 v. Rixey, 26 S. E. R^ 418 
 
 Jamison v. Jamison, 4 Md. Ch. . . . 589 
 Janesville Hay Tool Co. v. Boyce, 
 
 35W.Va 62s 
 
 Janney's Ex'r v. Stephens' Adm'r, 
 
 2P&H 562,563 
 
 Jarrell v. French, 43 W. Va 135 
 
 V. Jarrell, 27 W. Va 465 
 
 Jarrett v. Goodnow, 39 W. Va 
 
 262, 275, 377, 383 
 
 Jarrett v. Jarrett, 11 W. Va 
 
 ■ • ■ ;,v ;,•••• o-;?'' 9^' 9^' 99. S74 
 
 V. Wallace, 98 Ga 754 
 
 Jarvis v. Jarvis, 3 Edw. Ch 666 
 
 V. Martin, 45 W. Va 417, 420 
 
 Jefferson v. Jefferson, 168 Mass. . . 671 
 Jenkins v. Hawkins, 34 W. Va. . . 
 
 ••■;;•■■••••■• 622,64s, 725 
 
 V. Van Schaack, 3 Paige Ch. 511 
 
 V. Williams, 113 N. C 726 
 
 Jennison v. Hapgood, 7 Pick. 
 
 (Mass.) 16& 
 
 Jett V. Hempstead, 25 Ark 34 
 
 Jewel V. Howe, 3 Watts (Pa.).. .56, 57 
 John V. Barnes, 21 W. Va..i69, 171, 404 
 
 Johns V. Ritchey, 39 Md 100 
 
 Johnson v. Anderson, 76 Va 398 
 
 V. Coleman, 23 Wis 401 
 
 V. Geneva Pub. Co., 20 S. W 
 
 ReP;.-- 72 
 
 V. Gibson, 116 ni. App 734 
 
 V. Griswold & Rogers, 8 W 
 
 Va 485 
 
 V. Hughes, 27 Gratt 128 
 
 V. Huling, 127 111 83, 84 
 
TABIDS OF CASKS. 
 
 xlvii 
 
 PAGB 
 
 Johnson v. Lawrence, 95 N. Y 196 
 
 V. Mantz, 69 Iowa 107 
 
 V. Palman, 87 Ga 477 
 
 V. Perrote, 46 Neb 604 
 
 V. Riley, 41 W. Va 
 
 306, 307, 604, 608 
 
 V. Young, II W. Va 399 
 
 V. Young, 20 W. Va..5i9, 521, 555 
 
 Johnson Harvester Co. v. Mein- 
 
 hardt, 9Abb. (N. C.) 387 
 
 Johnson's Will, 40 Conn 579 
 
 Jones V. Brown, 34 N. H 312 
 
 V. Browse, 32 W. Va 231 
 
 V. Degge, 84 Va 80, 91 
 
 V. Dils et al., 18 W. Va 83 
 
 PAGE 
 
 Jones V. Ewing, 107 Ind 449 
 
 V. Fox, 20 W. Va 5 
 
 V. Jones, 92 Va 418 
 
 V. Jones, 67 Miss 649 
 
 V. Jones, 86 Va 178 
 
 V. Lemon, 26 W. Va 757 
 
 V. McGruder, 87 Va 80, 93 
 
 V. Mason, 5 Rand 188 
 
 V. Reid, 12 W. Va 431 
 
 Jordan v. Westerman, 62 Mich . . . 583 
 
 Jowers V. Phelps, 33 Ark 142 
 
 Joy V. St. Louis, 138 U. S 3 
 
 Joyce V. Dauntz, 45 N. E. Rep 557 
 
 Jndd V. Woodruff, 2 Root 485 
 
 Kabel v. Mitchell, 9 W. Va 
 
 406, 409.410 
 
 Kain v. Larkin, 141 N. Y 287, 288 
 
 Kanawha Val. Bank v. Atkinson, 
 
 32 W. Va 286 
 
 V. Wilson et al., 29 W. Va. . . 126 
 
 Kanawha Coal Co. v. Welch Coal 
 
 Co., 31 S. E. Rep 221 
 
 Kanawha & O. R. Co. v. Ryan, 
 
 31 W. Va. . .274, 347, 378, 394, 472 
 Kane v. Bloodgood, 2 Johns. Ch.. 418 
 
 V. Mann, 93 Va.602, 611, 624, 707 
 
 V. O'Connor, 78 Va 745 
 
 V. Vanderburgh, i Johns. 
 
 Ch 349 
 
 Kansas A. V. R. Co. v. Fitzhugh, 
 
 61 Ark 472 
 
 Kansas L. & T. Co. v. Gill, 2 Kan. 
 
 App 683 
 
 Kastendiek v. Kastendiek, 35 Atl. 
 
 Rep 656 
 
 Kaster v. Kaster, 52 Ind 579 
 
 Katz V. Brewington, 71 Ind 220 
 
 Kauffman v. Myer, 6 Watts 36 
 
 Kayser v. Disher, 9 Leigh 185 
 
 Keagy v. Trout, 85 Va 301, 632 
 
 Kee V. Kee, 2 Gratt 166 
 
 Keel V. Ogden, 5 T. B. Mon. 
 
 (Ky.) 71 
 
 Keeley v. Perkins, 124 Pa. St 771 
 
 Keen v. Brackenridge, 96 Ind 229 
 
 Keffer v. Grayson, 76 Va 529 
 
 Kellam v. Sayre, 30 W. Va 600 
 
 Kellett V. Sheppard, 34 N. E. Rep. 133 
 
 Kelley v. Fisk, no 111 142 
 
 V. Kelley, 6 Rand 188 
 
 Kellogg V. Fancher, 23 Wis '. . 513 
 
 Kelly V. Adaxns, 120 Ind 36 
 
 V. Alabama & C. R. Co,. 58 
 
 Ala 723 
 
 V. Greenleaf, 3 Story 513 
 
 V. Lewis, 4 W. Va 565, 568 
 
 V. McQuinn, 42 W. Va. . .336, 417 
 
 V. Ohio Oil Co., 57 Ohio St.. 132 
 
 V. Riley, 22 W. Va 
 
 II, 19, 21, 22, 257 
 
 Kelso V. Blackburn, 3 Leigh. .283, 459 
 
 Kelty V. High, 29 W. Va 398 
 
 Kemper v. Campbell, 41 Ohio St.. 
 
 444,449 
 
 Kempf V. Kempf, 34 Mo 652, 662 
 
 Kendall v. Bishop, 76 Mich 305 
 
 Kenemer v. Kenemer, 26 Ind 583 
 
 Keneweg Co. v. Schilansky, 34 S. 
 
 E. Rep 295 
 
 Kennedy v. Brent, 6 Cranch 71 
 
 V. Ehlen, 31 W. Va 538 
 
 V. Hoy, 105 N. Y 742 
 
 Kennerly v. Schwartz, 83 Va 621 
 
 Kent V. Cloud, 30 Gratt 607 
 
 V. Dunham, 106 Mass 183 
 
 V. Watson, 22 W. Va 158 
 
 Kerfoot v. Billings, 160 111 419 
 
 Kerr v. Hall, 117 Ind 230 
 
 V. Hill, 27 W. Va 
 
 221, 225, 363, 643 
 
 V. Lunsford, 31 W. Va 
 
 93. 98, 576, 577 
 
 Kester v. Hill, 42 W. Va 2n 
 
 Kettle River R. Co. v. Eastern R. 
 
 Co., 41 Minn 265 
 
 Kevan v. Waller, 15 Gratt 321, 322 
 
 Key V. Hughes et al., 32 W. Va. . . 
 
 178, 758. 761 
 
 Keyes v. Bump, 59 Vt 633 
 
 Kej^on V. Bradfords, 5 Leigh. ..11, 12 
 Kidderlin V. Meyer, 2 Miles (Pa.). 74 
 
 Kiger v. Depue, 6 W. Va 295 
 
 v. Sipe, 89 Va 525, 634, 646 
 
 Kilbourn v. Sunderland, 130 U. S. s 
 Kilbreth v. Root's Adm'r, 33 W. 
 
 Va 137.400 
 
xlviii 
 
 TABLE OF CASES. 
 
 FAe:B 
 Kile V. Harveys, 25 W. Va 
 
 60, 285, 294 
 
 Kilgore v. Rich, 83 Md 339 
 
 Kilbner v. Mechmer, 8 L. R. A. . 276 
 Kilpatrick-Koch Co. v. McPheely, 
 
 37 Neb 64 
 
 Kimball v. Bangs, 144 Mass 460 
 
 V. Walker, 30 111 36 
 
 Kimmins v. Oldham, 27 W. Va. . 
 
 269. 530 
 
 Kincheloe v. Kincheloe, 11 Gratt. 575 
 
 King V. Baldwin, 2 Johns. Ch 555 
 
 V. Buskirk, 25 C. C. A. (U. 
 
 s.) 352 
 
 V. Biehle, 9 Serg. & R 183 
 
 V. King, 19 Ky. L. Rep 98 
 
 V. Morrison, etc., R. Co., 18 
 
 N.J.Eq 357 
 
 V. Payafl, 18 Ark 8 
 
 V. Williamson, 25 C. C. A. 
 
 (U.S.) 352 
 
 Kinkaid v. McGowan, 88 Ky 83 
 
 Kinney v. B. & O. Empl's Relief 
 
 Ass., 35 W. Va 38, 267 
 
 Kinport v. Rawson, 29 W. Va. . . 
 
 •. 12, 389 
 
 Kinsey v. Kinsey, 90 Va 658 
 
 Kiutner v. Jones, 122 Ind 741 
 
 Kiracofe v. Kiracofe, 93 Va 120 
 
 Kirby v. Kirby, 84 Va 222 
 
 Kirk V. Hamilton, 102 U. S 144 
 
 Kirkendall v. Shorey, 28 Neb 63 
 
 Kirkman v. Vanlier, 79 Ala 29 
 
 Kirkpatrick v. Clark, 8 L. R. A. . 496 
 
 V. Smith, 77 Va 6 
 
 Kitts V. Wilson, 130 Ind 284 
 
 Klee V. Reitzenberger, 23 W. Va. 
 
 292,294 
 
 Klenck v. Schwalm, 19 Wis 68- 
 
 Klepper v. Powell, 6 Heisk. 
 
 (Tenn.) 56 
 
 Klinck V. Price, 4 W. Va 566 
 
 Kline v. Triplett, 25 S. E. Rep. . . 615 
 
 TAGTt 
 
 Knapp V. Joy, 9 Mo. App 61 
 
 V. Railroad Co., 74 Mo 697 
 
 V. Snyder, 15 W. Va 274, 275, 
 
 376. 472, 473. 474, 477 
 
 Knelknap v. Hidding, 21 Wis 272 
 
 Knifong v. Hendricks, 2 Gratt. . . 
 
 472,473 
 
 Knight V. Capito, 23 W. Va 
 
 286, 290, 297 
 
 V. Charter, 22 W. Va. . . ,525, 526 
 
 V. Oliver, 12 Gratt 318. 
 
 V. Watts, 26 W. Va 
 
 102, 196, 206, 340, 762 
 
 V. Yarborough, 4 Rand 16& 
 
 Knott V. Seamonds, 25 W. Va 382 
 
 V. Sheperdstown Mfg. Co., 
 
 30 W. Va 528 
 
 Knotts V. Steams, 91 U. S 407 
 
 V. Tawer, 8 Ala 28 
 
 Knowlton v. Knowlton, 155 111. . . 649 
 
 Knox's Appeal, 6 L. R. A 751 
 
 Knox County Com'rs v. Aspin- 
 
 wall, 62 U. S 146 
 
 Koger V. Kain's Adm'r, 5 Leigh.. 11, 23 
 Koon V. Snodgrass, 18 W. Va. .87, 390 
 Kome V. Kome, 30 W. Va 
 
 80,89,97,718 
 
 Krathwohl v. Dawson et al., 140 
 
 Ind 144 
 
 KIribbs V. Aford, 120 N. Y; 722 
 
 Kritzer v. Smith, 21 Mo 58 
 
 Kromer v. Friday, 10 Wash 340 
 
 Krohn v. Weinberger, 34 S. E. 
 
 Rep 225 
 
 Kuhn V. Board of Education, 4 
 
 W. Va 370, 372 
 
 Kuhn, Nutter & Co. v. Mack & 
 
 Bro., 4W. Va 360,635 
 
 Kurmer v. O'Neil, 39 W. Va. .306, 308 
 
 Kyle V. Conrad, 25 W. Va 319 
 
 V. Wagner, 45 W. Va 119, 120 
 
 Kyles V. Tail, 6 Gratt 412 
 
 L. 
 
 Lackey v. I<ackey, 8 B. Mon. 
 
 (Ky.) 203 
 
 Lackman v. Wood, 25 Cal 151 
 
 Lafever v. Billmeyer, 5 W. Va. . . 
 
 26, 27, 28, 29 
 
 Lafferty v. Lafferty, 5 Redf 575 
 
 V, Lafferty, 42 W. Va 340 
 
 Lafln & R. Powder Co. v. Tear- 
 
 ney, 131 111 358 
 
 Laidley v. Central Land Co., 30 
 
 W. Va 426 
 
 V. Hincheman, 3 S. E. Rep, ..603 
 
 V. Kline, 8 W. Va 
 
 137, 166, 615, 622 
 
 Laidley v. Kline, 23 W. Va. . .606, 620 
 
 V. Knight, 23 W. Va 437 
 
 V. Laidley, 25 W. Va 19 
 
 Lake v. Security Loan Associa- 
 tion, 72 Ala 459 
 
 Lallance v. Fisher, 29 W. Va 643 
 
 Lake v. Tyree, 90 Va .'.' 258 
 
 Lam V. Tidball, Gilm 636 
 
 Lamar v. Hale, 79 Va 481, 490, 757 
 
 Lamb v. Cecil, 25 W. Va.is8, 418, 570 
 
 V. Lamb, 10 Ind 572 
 
 Lamkin v. Reese, 7 Ala 153 
 
 Lanahan v. Lawton, 50 N.J. Ch.. 633 
 Lance v. McCoy, 34 W. Va.. .202, 390 
 
TABLE OF CASES. 
 
 xlix 
 
 PAGE 
 Landeman v. Wilson, 29 W. Va. . 
 
 67, 292, 299 
 
 Lander v. Hall, 69 Wis 351 
 
 Lane v. Black, 21 W. Va 32, 33 
 
 V. Schlemmer, 114 Ind 148 
 
 V. Stebbins, 9 Paige 766, 772 
 
 Lang V. Brown, 21 Ala 607 
 
 Langstaff v. LangstaS, Wright 
 
 (Ohio) 655 
 
 Langhyer v. Patterson, 'J^ Va 403 
 
 Lansing v. Barr, 2 Johns Ch 768 
 
 Lantham v. Lantham, 30 Gratt. . . . 
 
 659, 663, 66s 
 
 Lapp V. Ryan, 23 Mo. Ap 273 
 
 Laredo v. Nalle, 65 Tex 73 
 
 Larimore v. Wells, 29 Ohio St. . . . 317 
 
 Larkin v. Woolsey, 109 Ala 431 
 
 L'Amoreaux v. Crosby, 22 Am. 
 
 Dec 204 
 
 Lassar v. Baldridge, 32 Mo. Ap .... 39 
 Latham v. Moore, 6 Jones (N. C.) 
 
 Eq 168 
 
 V. Wilcox, 99 N. C 323 
 
 Laughlin v. Fream, 14 W. Va 426 
 
 V. Mitchell, 30 U. S. L. ed 143 
 
 Lavender v. Thomas, 18 Ga 536 
 
 Lawrence v. Dubois, 16 W. Va. . . . 
 
 71S, 716 
 
 V. Kidder, 10 Barb 265 
 
 V. Zimpleman, 2i} Ark 84 
 
 Lawton V. Case, 73 Ind 703 
 
 Lawyer v. Barker, 31 S. E. Rep. . . 306 
 
 Lay V. Kennedy, i Watts & S 576 
 
 Layson v. Davis, 17 Mont 
 
 310, 312, 314. 317 
 
 Lazell V. Garlow, 44 W. Va '. 354 
 
 Leach v. Seattle, 33 Vt 27 
 
 Leach et al. v. Buckner's Adm'r, 
 
 19 W. Va ■ 197 
 
 Leake v. Ferguson, 2 Gratt 556 
 
 Leas V. Edson, 9 Gratt 326 
 
 Leavitt v. Leavitt, 13 Mich 494 
 
 Lee V. Feamster, 21 W. Va 568, 630 
 
 v. Patillo, 4 Leigh 45 
 
 V. Ruggles, 62 111 87 
 
 Leeds v. Wheeler, 157 Mass 81 
 
 Lefler v. Forsburg, 21 Wash. L. 
 
 Rep 700 
 
 Legelbaum v. Legelbaum, 39 
 
 Minn 654 
 
 Leggett v. Sellon, 3 Paige Ch 767 
 
 Leigh v. Harrison, 69 Miss 756 
 
 Leith v. Carter, 83 Va 193 
 
 Lejeune v. Harman, 45 N. W. 
 
 Rep 84 
 
 Leland v. Collver, 34 Mich 722 
 
 Lemoines v. Dunklin Co., 2 C. C. 
 
 A 418 
 
 Lemon v. Hansbarger, 6 Gratt. .. . 326 
 Lenning v. White, 20 S. E. Rep. . . 632 
 
 PAGE 
 
 Lenox V. Notrebe, Hempst 219 
 
 Leonard v. County Court, 25 W. 
 
 Va 52s 
 
 V. Poole, 114 N. Y 266 
 
 V. Smith, 34 W. Va 600 
 
 Leroy v. Servis, i Cai. Cas 773 
 
 V. Veeder, i Johns Cas 773 
 
 Leser v. Glasser, 32 Kan 62 
 
 Leslie v. Lorillard, no N. Y. ..265, 266 
 
 Levy V. Hampton, i McCord 520 
 
 Lewis V. Laidley, 39 W. Va 624 
 
 V. Madisons, 1 Munf 486 
 
 V. Pratt, II Minn 64 
 
 V. Spencer, 7 W. Va 371, 372 
 
 Lexington Life Ins. Co. v. Paige, 
 
 17 B. Mon 5 
 
 Lick V. Ray, 43 Cal 82 
 
 Ligon V. Ford, S Munf 45 
 
 Lindley v. O'Reilly, 50 N. J. L 759 
 
 Lindsay v. Lindsay, i Desau. (N. 
 
 C.) 164 
 
 V. Lindsay, 42 N. J. Eq 665 
 
 Line Weaver v. Slag Co., 64 Md. . . 305 
 
 Lingle V. Cook, 32 Gratt 178 
 
 Linhart v. Foreman, "jy Va 
 
 ^ . 92, 259, 'i7T, 460 
 
 Lmn V. Palton, 10 W. Va 615. 
 
 Linney's Ex'r v. Holliday, 3 
 
 Rand 168 
 
 Linzee v. Mixer, loi Mass 347 
 
 Literall v. Jackson, 80 Va 529, 530 
 
 Little V. Chad wick, 151 Mass 763 
 
 Little Rock & Ft S. R. Co. v. ^' 
 
 Wells, 30 L. R. A. . . .27T, 379, 384 
 
 Litz V. Gosling, 21 L. R. A 539 
 
 Livesay v. Beard, S2 W. Va 
 
 285, 286, 288, 289, 292, 293, 295, 303 
 
 V. Dunn, 33 W. Va 620 
 
 V. Feamster, 21 W. Va 
 
 392, 393, 611 
 
 Livey V. Winton, 30 W. Va 446 
 
 Livingston v. Dean, 2 Johns Ch. . . 726 
 
 V. Hubbs, 2 Johns Ch 726 
 
 V.Livingston, 2 Johns Ch.... 302 
 
 V.Livingston, 6 Johns Ch.... 383 
 
 Lloyd V. Lynch, 28 Pa. St 108 
 
 Locke V. Barbour, 62 Ind 759 
 
 Lockhart & Ireland v. Beckley, 10 
 
 W. Va. 280, 285, 288, 295, 296, 
 
 297, 747 
 Lockhead v. Water & Imp. Co., 
 
 40 W. Va 700 
 
 Loftus V. Maloney, 8g Va 80, 99 
 
 Logan V. Pannill, 90 Va 416 
 
 Logic V. Black, 24 W. Va 512 
 
 Loker v. Gerald, 16 L. R. A 649 
 
 Long's Appeal, 7 Pa. St 509 
 
 Long V. Grossman, 119 Ind 148 
 
 V. O'Fallon, 19 Howard 407 
 
 V. Perrine, 41 W. Va 710, 711 
 
TABI,E OF CASKS. 
 
 PACE 
 
 I<ong V. Ryan, 30 Gratt 54 
 
 V. Weller, 29 Gratt 488, 490 
 
 V. Woodman, 58 Me 460 
 
 Longshore Print. & Pub. Co. v. 
 
 Howell, 26 Or 
 
 384.385,386,387.388 
 
 Loop V. Summers, 3 Rand 524 
 
 Lord V. Lord, L. R. 2 Ch. App 183 
 
 V. Wirt, 96 Mich 58 
 
 Lorentz v. Lorentz, 14 W. Va. .159, 534 
 Losey V. Simpson, 11 N. J. Eq. .. . 726 
 
 Loth V. Carty, 85 Ky 722 
 
 Lotowich V. Lotowich, 19 Kan. .. . 582 
 
 Loud V. Seargent, i Edw. Ch 555 
 
 Loudermilk v. Loudermilk, 98 
 
 Ga 464 
 
 Lough T. Michael, 37 W. Va. .467, 705 
 Louisville, etc., R. Co. v. Boney, 
 
 117 Ind 697 
 
 Louisville & N. R. Co. v. Taylor, 
 
 93 Va 83 
 
 LouUard v. Coster, 5 Paige 742 
 
 Love V. Tinsley, 32 W. Va 283 
 
 Lovell V. Chilton, 2 W. Va 362, 363 
 
 Lovet V. Thomas's Adm'r, 81 Va. 
 
 176, 242, 761 
 
 Low V. Holmes, 17 N. J. Eq S09 
 
 Lowe V. Trundle, 78 Va 92 
 
 Lowry V. BufiSngton, 6 W. Va. . . . . 528 
 
 PAGE 
 Lowther v. Lowther, 30 W. Va. . . . 316 
 Lucas V. Smithfield, etc., Co., 36 
 
 W. Va 389 
 
 Lucht V. Behrens, 22 Am. Rep 171 
 
 Luddington v. Tiffany, 6 W. Va. . 392 
 
 Ludlow V. Norfolk, 87 Va 396 
 
 Ludwig V. Kipp, 20 Hun 722 
 
 Lundin v. Schoefel, 167 Mass 684 
 
 Lundy v. Lundy, 131 111 84 
 
 Luther v. Luther, 122 Ind 572 
 
 Lux v. Haggin, 69 Cal 143 
 
 Lynch v. Clements, 24 N. J. Eq. .. 94 
 v. Versailles Fuel Gas Co., 165 
 
 Pa. St 684 
 
 Lynchburg Nat. Bank v. Scott, 91 
 
 Va 56s 
 
 Lynchburg St. Ry. Co. v. Dam- 
 
 eron, 95 Va 368 
 
 Lynde v. Lynde, 4 Sandf 584 
 
 Lynn v. First Nat. Bank, 40 S. W. 
 
 Rep 224 
 
 Lyon V. Hent, 45 Ala 31 
 
 V. Register, 36 Fla 509 
 
 Lyons \. Campbell, 88 Ala 577 
 
 V.Houston, 2 Harr. (Del.).. 74 
 
 V.Miller, 6 Gratt 421, 766, 772 
 
 Lyster v. Lyster, iii Mass 661 
 
 Lyttle v. Cozad, 21 W. Va 421, 422 
 
 M. 
 
 M. & H. R. Co. V. Clute, 4 Paige 
 
 Ch 782, 783 
 
 McArter v. Armstrong, 32 S. C. .. 545 
 McArthur v. Franklin, 16 Ohio 
 
 . St 731 
 
 V. Gordon, 32 L. R. A 718, 761 
 
 McBee v. McBee, 22 Or 662 
 
 McBeth v. Trabue, 69 Mo 149 
 
 McCaa v. Wolf, 42 Ala 149 
 
 McCamman v. Cunningham, 108 
 
 Ind , 203 
 
 McCandless v. Warner, 26 W. Va. 
 
 219, 741, 749 
 
 McCandlish v. Keen, 13 Gratt 482 
 
 McCarthy v. McCarthy, 137 111 583 
 
 McCartney v. Potomac Electric 
 
 Co., 94 Va 619 
 
 V. Ridgway, 160 111 
 
 • -310, 311, 317, 519, 525, 739. 754 
 
 McCarty v. Ball, 82 Va. 621 
 
 V. Chalfant, 14 W. Va 633 
 
 V. Woodstock Iron Co., 12 L. 
 
 R. A 80, 89 
 
 McCauley & Dismal Swamp Co., 
 
 2 Rob Rep. 126, 132 
 
 McCelvey v. Thompson, 7 S. C . . . 405 
 McClanahan v. Hockman, 96 Va. . 
 
 S07, 508 
 
 V. Ivanhoe L. & Imp. Co., 96 
 
 Va 
 
 V. McClanahan, 36 W. Va 
 
 269, 
 
 V. Roanoke Iron Co., 28 S. E. 
 
 Rep 
 
 McCIean V. Lafayette Bank, 3 Mc- 
 Lean 
 
 McCleary v. Grantham, 29 W. Va. 
 
 McClasay v. Hart, 16 W. Va 
 
 McClaskey & Crim v. O'Brien, 16 
 
 W. Va 396, 441, 443, 552, 
 
 563, 615, 617, 618, 
 
 McCIintock v. Ocheltree, 4 W. 
 Va 
 
 McCIintock v. Loisseau, 31 W. Va. 
 269, 275, 
 
 McClung V. Bierne, 10 Leigh. .556, 
 
 V. Livesay, 7 W. Va. 371, 372, 
 
 V. McClung, 40 Mich 
 
 V. Terry, 21 N. J. Eq 
 
 McClure v. Cook, 39 W. Va 
 
 McComb V. Dunch, 2 Dall 
 
 McCormack v. O'Bannon, 3 Munf 
 
 McCown V. Russell, 84 Wis. . 
 
 McCoy V. Allen, 16 W. Va 
 
 V. Bassett, 26 W. Va 
 
 V. McCoy, 29 W. Va '. 
 
 92 
 318 
 416 
 
 399 
 399 
 
 62s 
 436 
 
 284 
 615 
 373 
 588 
 594 
 719 
 
 74 
 107 
 
 633 
 
 603 
 
 II 
 
 393 
 
TABLE OF CASES. 
 
 PAGE 
 
 McCrary v. Clements, 95 Ga 753 
 
 McCue's Trustees v. Harris, 86 Va. 298 
 
 McCulloch V. Campbell, 40 Ark 98 
 
 McCuUy V. Chapman, 58 Ala 153 
 
 V. McCully, 78 Va 746 
 
 McCune v. Michael, 29 Ga 144 
 
 McDaniels v. Lee, 37 Mo 5 
 
 McDearman v. Hodnett, 83 Va... 320 
 McDodrill v. Pardee & Curtin Co., 
 
 40 W. Va 324 
 
 McDonald v. Leach, Kilry (Conn.) 485 
 
 McDonald v. White, 130 111 83, 575 
 
 McDowell V. Cochran, 11 111 603 
 
 McFadden v. Hefley, 28 S. C 186 
 
 McFarland v. Fish, 34 W. Va 615 
 
 McGavock v. Clark, 93 Va 400 
 
 McGee v. Russell, 49 Ark 508 
 
 McGill V. McGill, 19 Fla 661 
 
 McGinnis v. Curry, 13 W. Va. .37, 745 
 
 McGough V. Sweetzer, 97 Ala 731 
 
 McGowen v. McGowen, 52 Tex. .. 665 
 
 McGowney v. State, 20 Ohio 519 
 
 McGugan v. Ohio R. Co., 33 W. 
 
 Va. 689,702 
 
 McGunn v. Hamlin, 29 Mich 107 
 
 Mclntery v. Reed, 23 Iowa 562 
 
 Maddox v. White, 4 Md 348 
 
 Madge v. Madge, 42 Hun. 665 
 
 Magahay v. Magahay, 35 Mich. . . . 661 
 
 Mahone v. Mahone, 16 Cal 661 
 
 Mahony v. Kephart, 15 W. Va. 74, ^^ 
 Maight V. Getzendanner, 65 Md.. . 740 
 
 Major V. Ficklin, 85 Va 466 
 
 Malcolm v. Allen, 49 N. Y 683 
 
 Malone r. Handley, 81 Ala 58 
 
 V. Hobbs, I Rob. Rep .90, 573 
 
 Maltby v. Austin, 27 N. W. Rep. . 460 
 
 Maker v. Falchon, 18 Nev 700 
 
 Manchester & L. R. Co. v. Con- 
 cord Co., 66 N. H 769 
 
 Manchester Loc. Works v. Trues- 
 
 dale, 9 L. R. A 629 
 
 ' Mandeville v. Avery, 124 N. Y 
 
 230, 284 
 
 Mandlin v. Greenville, 33 S. C 368 
 
 Manion v. Fahy, 11 W. Va 275, 401 
 
 Manke v. Neal, 23 W. Va 468 
 
 Manlove v. Thrift, 5 Munf Z7, 396 
 
 Mann v. Peck, 45 W. Va 417 
 
 Manners v. Johnson, L. R. i Ch. 
 
 Div. 347 
 
 Mansfield v. Dameron, 42 W. Va. 707 
 March v. Davisson, 9 Paige. ..766, 769 
 
 V. Taylor, 43 N. J. Eq 184 
 
 Marling v. Marling, 9 W. Va 317 
 
 V. Robrecht, 13 W. Va 
 
 399, 404, 604, 609, 611, 639 
 
 Marmet Co. v. Archibald, 37 W. 
 
 Va 148 
 
 Marriner v. Railroad Co., 26 Wis.. 144 
 
 PAGE 
 
 Marrows v. Brickley, 85 Va 154 
 
 Marsh v. Hogue, i Edw. (N. Y.). 182 
 
 v. Marsh, 14 N. J. Eq 584 
 
 Marshall v. Baines, 88 Va 673 
 
 V.Baltimore & Ohio R. Co. 
 
 57 U. S 267 
 
 v. Hall, 42 W. Va 601, 614, 763 
 
 Marshfield v. Wisconsin Tel. Co., 
 
 44 L- R- A 370 
 
 Mclntire v. Mclntire, 64 N. H 575 
 
 Mclntyre v. Mancius, 16 Johns. 
 
 , Rep jyz, 774 
 
 McKay v. McKay, 33 W. Va 
 
 ,, „ •■ 332, 333. 335 
 
 McKeen v. Ohphant, 18 N. J. L. .. 40 
 McKenzie v. Railroad Co., 27 W. 
 
 Va 427, 439 
 
 McKenzie v. Riley, 27 W. Va 525 
 
 McKey v. Cobb, 33 Miss 71, 72 
 
 McKinley v. Irwin, 13 Ala 31 
 
 McKinnon v. Vollmer, 75 Wis.... 256 
 McKinsey v. Squires, 32 W. Va. 
 
 52,71,76, 78 
 
 McLaugherty v. Croft, 43 W. Va. 
 
 619, 711 
 
 V. Morgan, 36 W. Va 298 
 
 McLaughlin v. Railroad Co., 21 
 
 Fed. Rep 419 
 
 McMahon v. McClernan, 10 W. 
 
 Va 219, 517 
 
 McMaster v. Edgar, 22 W. Va. . . . 299 
 McMechen v. McMechen, 17 W. 
 
 Va 93, 97, 575 
 
 McMillan v. Hockman, 35 W. Va. 601 
 
 V. Terrell, 7 W. Va 354, 355 
 
 McMullen v. Egan, 21 W. Va. 405, 437 
 
 V. Saunders, 79 Va 92 
 
 McNair v. Pope, 96 N. C 224 
 
 McNeel v. Baker, 6 W. Va 30 
 
 McNeel's Ex'rs v. Auldridge, 34 
 
 W. Va 602, 710, 715, 716 
 
 McNeil V. Miller, 29 W. Va 
 
 552, 553, 556, 557, 562 
 
 McPike V. Atwell, 34 Kan 58, 6i 
 
 McQuiddy v. Ware, 20 Wall 420 
 
 McRae's Ex'rs v. Brooks, 6 Munf. 167 
 Mack V. Handy, 39 La. Ann.. .661, 665 
 
 V. Prince, 40 W. Va 306 
 
 Martin v. Martin, 14 Or 234 
 
 V. Martin, 95 Va. 495, 502, 507, 510 
 
 V. Martin, 43 W. Va 
 
 . .580, 581, 589, 653, 660, 66s, 670 
 
 V. Melville, 11 N. J. Eq 683 
 
 V. Rellehan, 3 W. Va 166 
 
 & Gilbert v. Rexroad, 15 W. 
 
 Va 28s, 286, 288, 289 
 
 V. Smith, 25 W. Va 
 
 129, 310, 311, 314, 405 
 
 V. South Salem Land Co., 94 
 
 Va 118 
 
lii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Martin v. Thayer, 37 W. Va 98 
 
 V.Warner, 34 W. Va 286 
 
 Martin's Adm'r v. Fields, 82 Va. . . 323 
 
 Marx V. Strauss, 93 Ala 61 
 
 Maryland Brick Co. v. Dunkerly, 
 
 85 Md 69s 
 
 Mason v. Benedict, 43 La. Ann. ... 83 
 
 V. Black, 87 Mo 84 
 
 V. Bridge Co., 17 W. Va 
 
 374, 376, 391 
 
 V. Callender, 2 Minn 682 
 
 V. Harper's Ferry Bridge Co., 
 
 28 W. Va 143 
 
 City S. & M. Co. V. Town of 
 
 Mason, 23 W. Va 374 
 
 Massenberg v. Dennison, 18 C. C. 
 
 A. (U. S.) 418 
 
 Massie v. Hutchinson, 118 III. .739, 741 
 Massie's Adm'r v. Heiskel's Trus- 
 tees, 80 Va 12, 102 
 
 ' V. Watts, 6 Cranch 31, 734 
 
 Massey v. Wallace, 32 S. C 267 
 
 V. Yancey, 90 Va 301 
 
 Massow V. Fife, 10 Wash 692 
 
 Matheny v. Sandford, 26 W. Va. . 716 
 Matthews V. Crockett's Ad'mr, 82 
 
 Va 80 
 
 V. Greer, 21 W. Va 439 
 
 V. Jarrett, 20 W. Va 529, 538 
 
 V. Light, 32 Me 31 
 
 V. Marks, 44 Ark 84 
 
 V. Miller, 25 Wl Va. 38, 40, 42, 43 
 
 V.St. Louis S. & F. R. Co., 
 
 121 Mo S6o 
 
 V. Wade, 2 W. Va 324, 325 
 
 V. Wade, 21 W. Va 521, 522 
 
 Matthias v. Warrington, 89 Va 551 
 
 Mattingly v. Sutton, 19 W. Va 370 
 
 Maul V. Rider, 51 Pa. St 108 
 
 Mauney v. Ingrahatn, 78 N. C 193 
 
 Maxwell V. Henshaw, 24 W. Va. . . 299 
 
 V. Kennedy, 8 Howard 419 
 
 Mayers v. Kaiser, 21 L. R. A 434 
 
 Mayes v. Ruffners, 8 W. Va 
 
 687, 699, 700 
 
 Mayhew v. Clark, 33 W. Va 299 
 
 Mayo v. Judah, s Munf 682 
 
 Mayor of Baltimore v. Chase, 2 
 
 Gill. & J. (Md.) 222 
 
 Mead v. Grigsby, 26 Gratt 520 
 
 Mears v. Mears, 15 Ohio St 576 
 
 V. Sinclair, i W. Va 325 
 
 Mechanics' Foundry v. Ryall, 62 
 
 Cal 387 
 
 Medford v. Levy, 31 W. Va.. .358, 450 
 
 Medley v. Medley, 27 Gratt 128 
 
 Mee v. , 98 Mich 497 
 
 Meek v. Sprache, 87 Va 7 
 
 Meeker v. Vanderveer, 15 N. J. L. 166 
 Merrill v. Dukaney, 88 Va 567 
 
 PAGE 
 
 Meir v. Flinsbach, 95 Ky 305 
 
 Meldrum v. Meldrum, 15 Colo. 
 
 256, 592 
 
 Melendy v. Barbour, 78 Va 231 
 
 Memphis & Charleston R. Co. v. 
 
 Greer, 87 Tenn 384 
 
 & C. R. Co. V. Neighbors, 51 
 
 Miss 273 
 
 Mercantile Coop. Bank v. Brown, 
 
 96 Va 48s 
 
 Mut. Ins. Co. V. Calebs, 20 
 
 N. Y 560 
 
 Trust Co. V. Hart, 25 L. R. A. 562 
 
 Merchants' Bank of Danville v. 
 
 Belt, 30 S. E. Rep 285 
 
 Bank v. Kent, 43 Mich 220 
 
 Mercien v. The People, 35 Wend. . 302 
 Meredith v. Johns, i Hen. & Munf. 378 
 
 Merrell v. Campbell, 49 Wis 73 
 
 Merrick v. Wallace, 19 111 485 
 
 Merrill v. Merrill, 126 Mass 665 
 
 V. Ralston, s Redf 575 
 
 Merriman v. Walton, 30 L. R. A. 
 
 373 279 
 
 Merritt v. Horn, 5 Ohio St ,153 
 
 V. Hughes, 36 W. Va 494, 495 
 
 V. Merritt, 16 Wend 229 
 
 V.Miller, 4 Keys 147 
 
 Merwin v. Austin, 7 L. R. A 555 
 
 V. Chicago, 45 HI 73 
 
 Mesner v. Elliott, 184 Pa. St 95 
 
 Meyer v. Saul, 82 Md 419 
 
 Meyer's Ex'rs v. Zetelle, 21 Gratt 242 
 Michael v. Workman, 5 W. Va. .. 5 
 
 Michener v. Dale, 23 Pa. St 312 
 
 V. Springfield E. & T. Co., 31 
 
 L.R. A ..:. 377 
 
 Middleditch v. Williams, 47 N. J. 
 
 Eq 575 
 
 Middleton v. Newport Hospital, I 
 
 iv.R.A :...:.. 417 
 
 -—v. Selby, 19 W. Va.. .531, 532, 533 
 Midland R. Co. v. Wilcox, 122 
 
 Ind 697 
 
 Miles v. Wheeler, 
 
 Miller's Appeal, 31 Pa. St 318 
 
 Estate, 179 Pa. St 93 
 
 Miller V. Argyle, 5 Sligh 363, 636 
 
 V. Bergenthal, 50 Wis 702 
 
 V. Beverleys, 4 H. & M 765 
 
 V. Bloss, 30 Gratt 745 
 
 V.Cook, 77 Va 397 
 
 V. Cook, 124 Ind 287 
 
 V.Cook, 10 L. R. A... 83, 100, loi 
 
 V. Lee, 19 W. Va 641, 642 
 
 V. Lorentz, 39 W. Va. 157, 531, e^2 
 
 v.McMechen, 33 W. v/.'jL 31? 
 
 V. Miller, 3 Serg. & R ',%. 
 
 V. Miller, 189 Pa. St hi 
 
 y. Miller, 25 W. Va. . . .5, 382, 383 
 
TABLE OF CASES 
 
 liU 
 
 PAGE 
 Miller v. Miller, 92 Va 
 
 427,591. 592,668 
 
 V. Neff, 33 W. Va 639 
 
 V. Newberg Orrel Coal Co., 
 
 31 W. Va 113 
 
 V. Peck, 18 W. Va 434, 785 
 
 V. Rice et al., i Rand 177 
 
 V. Waddingham, 91 Cal 451 
 
 V. White, 33 S. E. Rep 63, 64 
 
 V. Zeigler, 44 W. Va 66, 69 
 
 Milliron v. Milliron, 9 S. D 581 
 
 Mills' Adm'r v. Talley's Adm'r, 
 
 83 Va 176, 178 
 
 Mills V. Mills, 28 Gratt 178 
 
 V. Mills, 3 Head. (Tenn) 182 
 
 V. Spraggins, 3 Gratt 576 
 
 V. Von Voorhes, 20 N. Y . 731 
 
 Milwaukee, etc., R. R. Co. v. 
 
 Soutter, 2 Wall 219 
 
 Minn. L. & T. Co. v. Beebe, 40 
 
 Minn 204 
 
 Mitchell, Sheriff v. Chancellor et. 
 
 al., 14 W. Va 9, 421 
 
 V. Faush, 69 Md 495 
 
 V. Mitchell, 8 Ala 320, 
 
 V. Oley, 23 Miss 8 
 
 Mix V. Mix, 1 Johns. Ch 666 
 
 Mobile Ins. Co. v. Columbia, etc., 
 
 R. Co.,4iS. C 559 
 
 Moffit V . Burgess, 8 Jones (N. C.) 
 
 L 56 
 
 MoUaw V. Griffith, 3 Paige 558 
 
 Mong V. Rouse, 29 W. Va 
 
 74i-'75i, 752 
 
 Monmouth Ins. Co. v. Hutchin- 
 son, 21 N. J. Eq 560 
 
 Monroe v. Bartlett, 6 W. Va 399 
 
 V. Williams & Turley, 37 S. 
 
 C 54,55 
 
 Montgomery v. Foster, 91 Ala. . . . 575 
 
 V. Gordon, 51 Ala 151, 152 
 
 Moore v. Bennett, 140 111 265, 266 
 
 V. Bruce, 85 Va 600, 603, 626 
 
 V. Butler, 90 Va 300 
 
 V. Chicago B. & Q. R. Co., 
 
 75 Iowa 383 
 
 V. Esty, 5 N. H 133 
 
 V. Green, 90 Va 710 
 
 V. Harper, 27 W. Va 498 
 
 V. Hilton et al., 12 Leigh 188 
 
 V. Holcomb, 4 Leigh 726 
 
 V. Holt, 10 Gratt 55 
 
 V. Johnson, 34 W. Va 567 
 
 — -' V. Lepscomb, 82 Va 377 
 
 V. Ligon, 30 W. Va 547 
 
 V. Ligon, 22 W. Va. .429, 547, 554 
 
 V. Mendelbaum, 8 Mich 31 
 
 V. McNutt, 41 W. Va 84 
 
 . V. Moore, 5 N. Y 31 
 
 V. Murphy, 40 Ala 536 
 
 PAGE 
 
 Moore v. Rogers, 3 Jones (N. C). 56 
 
 V. Rollins, 45 Me 130 
 
 V. Schoppert, 22 W. Va...H3, 116 
 
 V. Smith, 26 W. Va 422 
 
 V. Steelman, 80 Va 5 
 
 V. Townshend, 102 N. Y 84 
 
 V. Triplett, Va. Law Reg., 
 
 Vol. 4, No. 10 405, 409 
 
 V. Triplett, 96 Va 750 
 
 V. Ullman, 80 Va 278 
 
 V. Vaughn, 42 Neb 692, 693 
 
 V. Wheeler, 10 W. Va 515, 516 
 
 Moorman v. Arthur, 90 Va 745 
 
 V. Crockett, 90 Va 758 
 
 Moot V. Clark, 9 Pa. St 726 
 
 Moran v. Clark, 30 W. Va 404 
 
 Morehead v. Ford, 6 W. Va 393 
 
 Moreland v. Metz, 24 W. Va 603 
 
 Morgan's Adm'r v. Brast, 34 W. 
 
 Va II, 22,533 
 
 Morgan v. Bell, 3 Wash 461 
 
 V. Blatchley, 33 W. Va 134 
 
 V. Clark, 30 W. Va 630 
 
 V. Glendy, 92 Va 364 
 
 V. Morgan, 2 Wheat 536 
 
 V. Morgan, 42 W. Va 602 
 
 V. Ohio River Railroad Co., 
 
 39 W. Va 396, 397, 398 
 
 V. Pope, 7 Coldw. (Tenn.). . . 182 
 
 Morgan's, etc., R. Co. v. Texas C. 
 
 R. Co., 137 U. S 683 
 
 Moriarity v. Kent, 71 Ind 229 
 
 Morling v. Bronson, 37 Neb 683 
 
 Morris v. Garland, 78 Va 186 
 
 V. Grant, 24 Week. Rep 347 
 
 V. Morris et al., 4 Gratt 245 
 
 V. Payton, lo W. Va 399 
 
 V. Roseberry, 32 S. E. Rep. . 
 
 loi, 139 
 
 V. Stokes, 21 Ga 95 
 
 V. Thomas, 17 111 5 
 
 V. Va. Ins. Co., 85 Va. : 340 
 
 V. Virginia State Ins. Co., 90 
 
 Va 637,638 
 
 Morris & E. R. Co. v. Sussex R. 
 
 Co., 20 N. J. Eq 147 
 
 Morris, Overton et al. v. Ross, 2 
 
 H. &M 46 
 
 Morton v. Heidom, 135 Mo 94 
 
 Mosby v. Mosby, 9 Gratt 164, 169 
 
 Moseley v. Brown, 76 Va 562, 569 
 
 Moseley's Adm'r v. Buck et al., 3 
 
 Munf 32, 261, 271 
 
 Moses v. Mayor, etc., 52 Ala 6 
 
 Moss v. People, 6 Jones (N. C.) . . 56 
 
 Motley V. Frank, 87 Va 305 
 
 Mott V. Mott, 49 N. J. Eq 204 
 
 Moulton V. Holmes, 57 Cal 165 
 
 V. Reid, 54 Ala 6 
 
 V. Smith, i6 R. 1 194 
 
liv 
 
 TABLB OF CASES. 
 
 PAGE 
 Moultrie County v. Rockingham 
 
 Bank, 92 U. S 146 
 
 Mount V. Morton, 20 Barb 494 
 
 = V. Radford Trust Co., 93 Va. 117 
 
 V. Waite, 7 John 276 
 
 Mt. Carmel V. Shaw, 155 111 367 
 
 Mower v. Mower, 4 West 649 
 
 Mudsill Mining Co. v. Watrous, 9 
 
 C. C. A. (U. S.) 260 
 
 Muhler v. Hedekin, 119 Ind 367 
 
 Mulcahey v. Strauss, 151 111 231 
 
 Muller V. Downs, 94 U. S 697 
 
 Munford v. Firth, 68 Ind 55s 
 
 V. McVeigh, 92 Va 569 
 
 Munro v. Adair, 2 Caine's Rep. . . 36 
 
 Murdock's Case, 20 Am. Dec 346 
 
 Murdock v. Ins. Co., 33 W. Va.... 570 
 Murphy v. Lincoln, 63 Vt 383 
 
 PAGB 
 
 Murray v. Allard, 39 L. R. A 132 
 
 V. Murray, 115 Cal 219 
 
 V. Sell, 23 W. Va 746 
 
 V. Sylbum, 2 Johns. Ch 726 
 
 Muse V. Friedenwald, 77 Va jto 
 
 Musick V. Musick, 88 Va 655 
 
 Mustain v. Pannill, 86 Va 623 
 
 Mustard v. Wohlford, 15 Gratt. . . 153 
 Mutual Assurance Soc. v. Stone, 3 
 
 Leigh 481 
 
 Myers v. Farrell, 47 Miss 56, 57 
 
 V. Miller, 45 W. Va 556 
 
 V. Myers, 6 W. Va 209- 
 
 V. Myers, 83 Va 581, 586, 
 
 658, 659, 661 
 
 V. Wade, 6 Rand 328 
 
 V. Whiteheart, 24 S. C 61 
 
 N. 
 
 N. & W. R. Co. V. Postal Tel. Co., 
 
 88 Va 769 
 
 N. Y., etc., R. Co. v. Schuyler, 17 
 
 N. Y 470 
 
 Naddo V. Bradon, 2 C. C. A 420 
 
 Nagle V. Newton, 22 Gratt 574 
 
 Nash V. Jones, 41 W. Va 
 
 535. 544, 750 
 
 V. Minn. Title, Ins. & T. Co., 
 
 163 Mass 460 
 
 Nat. Bank v. Bates, 20 W. Va 523 
 
 Nat. Benefit Co. v. Union Hos- 
 pital Co., 45 Minn 265, 266 
 
 National Tradesmen's Bank v. 
 
 Wetmore, 124 N. Y 445 
 
 Nease v. .Etna Insurance Co., 32 
 
 W. Va 5, 7, 143, 470, 782 
 
 V. Capehart, 8 W. Va 
 
 574," 741, 757 
 
 Neblet v. McFarland, 92 U. S 100 
 
 Neel V. Neel, 19 Pa. St 130 
 
 Neeley v. Ruleys, 26 W. Va 626 
 
 Neely v. Lancaster, 47 Ark 122 
 
 Neff V. Baker, 87 Va 708 
 
 V. Wooding, 83 Va 710 
 
 Negley v. Lindsay, 67 Pa. St 276 
 
 Neidfer v. Chastain, 71 lud 459 
 
 Neill V. Rogers Bros. Produce Co., 
 
 41W. Va 70 
 
 Neilly v. Bee, 32 W. Va 521 
 
 V. Jones, 16 W. Va 553, 
 
 601, 602, 610 
 
 Neilson v. Lagon, 53 U. S 759 
 
 Nelliss V. Clark, 20 Wend 280 
 
 Nelson's Adm'r v. Comwell, 11 
 
 Gratt 48, 166, 182 
 
 Nelson v. Carrington, 4 Munf 
 
 16, 22, 102 
 
 V. Kownslar, 79 Va 416 
 
 V. Matthews, 2 H. & M 16, 22 
 
 Nester v. Continental Brewing 
 
 Co., 161 Pa. St 457, 458 
 
 Newcomb v. Brooks, 16 W. Va 
 
 33. 95. 210, 273, 764 
 
 Newell V. Meyendorf, 9 Mont. 
 
 '. 265, 26& 
 
 Newman v. Bast, 122 N. C 310 
 
 V. Chapman,/ 2 Rand 487, 491 
 
 V. Morris, 52 Miss 434 
 
 V. Newman. 27 Grat 505, 50& 
 
 V. Schrenck, 58 111. App. . . . 473 
 
 V. Willitts, 60-111 625 
 
 New Orleans C. & B. Co. v. Ha- 
 
 gan, I La. Ann 519 
 
 News V. Bass, Brown & Co., 92 
 
 Va 603, 606 
 
 Newton v. Cook, 4 Gray 731 
 
 Nat. Bank v. Newbegin, 20 
 
 C. C. A iig 
 
 V. Poole, 12 Leigh 252 
 
 V. Wade, 43 W. Va 605, 606 
 
 Nicholas v. Kerchner, 20 W. Va. 
 
 80, 94, 97, 98 
 
 Nicholhs V. Majmard, 3 Atk 682 
 
 Nichols V. Colgan, 130 111 259 
 
 V. Cooper, 2 W. Va 20 
 
 V. People's, etc., Sav. Assn., 
 
 93 Va 566 
 
 Nicholson V. Charity School, 93 
 
 Va 485 
 
 V. Nicholson, 115 N. C 698 
 
 Nick V. Dawson, 42 W. Va 43* 
 
 Nickerson v. Louch, 115 Mass 81 
 
 Nimm's Ex'r v. Commonwealth 
 
 4H.&M ; 194 
 
 Ninam v. Ninam, 22 W. Va 40s 
 
 Nicely V. Findlay, 3 Rand '. 40, 
 
 Noble V. Davies, 4 S. E. Rep 360 
 
TABLE OF CASBS. 
 
 Iv 
 
 PAGE 
 
 Noble V. McFarland, 51 111 121 
 
 Nobles V. Hogg, 36 S. C 761 
 
 Noel V. Gamett, 4 Call 677 
 
 Norcross v. Norcross, 105 Mass. . . 495 
 Norfolk & N. B. Hosiery Co. v. 
 
 Arnold, 143 N. Y 383 
 
 & W. R. Co. V. Perdue, 40 
 
 W. Va 141, 144, 154 
 
 Norman v. Cunningham, 5 Gratt.. 674 
 
 V. Hill, 2 P & H 636, 644 
 
 V. Sutter County Land Co., 
 
 161 Pa. St 457, 458 
 
 Norris v. Lake, 89 Va 294 
 
 V. Scott, 32 N. E. Rep 450 
 
 V. Woods, 89 Va 557 
 
 North V. McDonald, i Bliss. (111). 58 
 V. Philbrook, 34 Mfe 759 
 
 PAGE 
 
 Northern Pacific R. Co. v. Hussey, 
 
 9C.C. A 445 
 
 Northrop v. Andrews, 39 Kan 88 
 
 Northwestern, etc., Co. v. Blank- 
 
 enship, 94 Ind lor 
 
 Norton V. Marden, 32 Am. Dec. . . 89 
 
 V. Taylor, 35 Neb 403, 404 
 
 Norvell v. Hedricks, 21 "W. Va. 
 
 437, 569. 759 
 
 Norway v. Rowe, 19 Ves , . . . 352 
 
 Noyes v. Anderson, 124 N. Y. 
 
 679,685 
 
 V. Clark, 7 Paige 683 
 
 Nute V. Hamilton Mut. Ins. Co., 
 
 6 Gray 39 
 
 Nutter V. Connet, 3 B. Mon. (Ky. ) 56 
 Nuzjim V. Morris, 25 W. Va 384 
 
 Oakley v. Hulbert, 100 HI 83 
 
 Oats V. Watts, 28 Ark 485 
 
 O'Brien v. Stephenson, 11 Gratt... 
 
 53. 77 
 
 O'Connor v. Knoxv. Hot. Ass'n, 
 
 II Am. R. R. & Corp. Rep. . . 114 
 
 Odom V. Kiddick, 104 N. C 206 
 
 V. McMahan, 67 Tex 379 
 
 O'Donnell v. Town of Clinton, 145 
 
 Mass 259 
 
 Ods V. Cummings, 31 111 726 
 
 Oifterdinger v. Ford, 86 Va 69 
 
 Ogden V. Chalfant, 32 W. Va 
 
 219, 221, 228 
 
 V. Ogden, 60 Ark 122 
 
 Ogle V. Adams, 12 W. Va 505, 574 
 
 Oglesby Coal Co. v. Pasco, 79 111. 149 
 Ohio River Railroad Co. v. Gib- 
 bens, 35 W. Va 376 
 
 V. Ward, 35 W. Va 
 
 375, 376,377, 610 
 
 Oil Run Petroleum Co. v. Gale 
 
 et al., 6 W. Va. .227, 781, 782, 783 
 
 Oliver v. Oliver, 5 Ala 592 
 
 O'Neal V. Virginia, etc.. Bridge 
 
 Co., 18 Md 5 
 
 Oney v. Ferguson, 41 W. Va 
 
 428, 429. 433, 438 
 
 Onondaga County Bank v. De 
 
 Puy, 17 Wend 513 
 
 Oregon v. Jennings, 119 U. S 146 
 
 Orphan Asylum v. McCarter, 
 
 Hopk. (N. Y. ) 222 
 
 Orr V. Chandler, 86 Va 157 
 
 V. Pennington, 93 Va 415, 417 
 
 V. Wiley et al., 19 W. Va.. . . 83 
 
 Orth V. Orth, 145 Ind 738 
 
 Orton V. Madden, 75 Ga 224 
 
 Osborne v. Glasscock, 39 W. Va. 
 
 437, 491 
 
 V. O'Reilly, 42 N. J. Eq 6 
 
 V. Taylor, 12 Gratt 575 
 
 Osburn v. McClelland, 43 Ohio St. 143 
 
 Osgood V. Breed, 17 Mass 318 
 
 V. Osgood, 2 Paige 581, 582 
 
 Osterburg v. Union Trust Co., 93 
 
 U. S 404 
 
 Oswold V. Tyler, 4 Rand 472 
 
 Otis V. Beckwith, 49 HI 753 
 
 V. Gregory, iii Ind 449 
 
 V. Prince, 10 Gray 745 
 
 Otley V. McAlpin, 2 Gratt 495 
 
 Ottawa First Nat. Bank v. Ottawa, 
 
 43 Kan 73 
 
 Overall v. Bland, 11 Ky. L. Rep.. 93 
 Owen v. Dickerson, Craig & P. . . 619 
 Owens V. Owens, 31 S. E. Rep. . . 660 
 
 Pace V. Pace, 95 Va 555 
 
 Pack V. Hansbarger, 17 W. Va — 
 
 483,484,531, 616 
 
 V. Shanklin, 43 W. Va 741 
 
 Paddock v. Adams, 56 Ohio St.. . . 754 
 
 Page's Appeal, 71 Pa. St 185 
 
 Matter, 118 111 579 
 
 Page V. Lewis, 89 Va 311, 312, 317 
 
 Page V. Taylor, 2 Munf 322 
 
 Pairo V. Bethel, 75 Va 413 
 
 Palmer v. Hawes, 80 Wis 61 
 
 Panslen v. Manke, 126 111 39 
 
 Parish v. Parish, 88 Va 126, 129 
 
 V. Wheeler, 22 N. Y 147 
 
 Park V. Oil Co., 26 W. Va 117 
 
 V. Petroleum Co., 25 W. Va. . 118. 
 
Ivi 
 
 TABI<E OF CASKS 
 
 PAGE 
 
 Park V. Rucker, 5 Ivcigh 172 
 
 Parker v. Brast, 45 W. Va 503 
 
 V. Brown, 6 Gratt 573 
 
 V. Carter, 4 Munf 769 
 
 V. Davis, 8 Jones (N. C.) L- • 204 
 
 V. Donnally, 4 W. Va 74 
 
 V. Grainer, 17 Wend 192 
 
 V. Jacobs, 14 S. C 722 
 
 V. Logan, 82 Va 747 
 
 et al. V. McCoy, 10 Gratt 210 
 
 V. Oliver, 18 So. Rep 683 
 
 V. Providence Steamship Co., 
 
 14 L R. A 165 
 
 V. Randolph, 5 S. D 725 
 
 V. Shannon, 121 111 81 
 
 V. Valentine, 27 W. Va 
 
 277, 286, 288, 289, 626 
 
 Parlcersburg v Brown, 106 U. S. . . 146 
 
 Nat.. Bank v. Allis, 5 W. Va.. 468 
 
 Parkett v. Alexander, 2 Johns. R. 480 
 Parsons v. Harrold, 32 S. E. Rep. 
 
 520, 524, 525 
 
 V. Mitchell, 3 Edw. Ch 319 
 
 V. Snyder, 42 W. Va..362, 382, 623 
 
 V. Thomburg, 17 W. Va 625 
 
 Patch V. Morrissett, 22 S. E. Rep. 636 
 
 Pate V. Oliver, 104 N. C 193 
 
 Patrick V. Horton, 3 W. Va. . .529, 548 
 
 Patterson v. Donner, 48 Cal 267 
 
 v. Grottoes Co., 93 Va 711 
 
 V. Martin, 32 W. Va 493, 510 
 
 Patton V. Bank, 12 W. Va..427, 436, 437 
 
 V. Baird, 42 N. C 40 
 
 V. Cilley, 67 N. H 94 
 
 & Co. V. Malone et al., 16 W. 
 
 Va 352 
 
 V. Williams, 3 Munf 185 
 
 Paul V. Baugh, 8.'? Va 286, 294 
 
 V. Rogers, 5 T. B. Mon. (Ky. ) 72 
 
 Paxton V. Rich, 85 Va 
 
 520, 606, 607, 618, 
 
 622, 645, 646, 708 
 
 Payne v. Ballard, 61 N. H 2 
 
 V. McQuown, 31 L. R. A. . . . 377 
 
 V. Morris, 5 S. E. Rep 757 
 
 V. Payne, 46 Minn 651 
 
 V. Payne, 42 Ark 665 
 
 V. Webb,!i23 W. Va 399 
 
 Peabody v. FUnt, 6 Allen 417 
 
 Peacock v. Stott, 104 N. C 83 
 
 Peale v. Hickle et al., 9 Gratt 245 
 
 V. Phillips, 14 How 231 
 
 Pearl v. Nashville, 10 Yerg. 
 
 (Tenn.) 27 
 
 Pearson v. Pearson, 135 111 98, loi 
 
 Peaselee v. Barney, 1 D. Chip. 
 
 (Vt.) 168 
 
 Peay v. Morrison, 10 Gratt 283 
 
 Peck v. Chambers, 8 W. Va 604 
 
 V. Chambers, 8 Mo 399 
 
 PAGE 
 
 Peck V. Marling, 22 W. Va 137, 438 
 
 Pendergrass v. Pendergrass et al., 
 
 26S. C 192 
 
 Pendleton v. Smith, i W. Va. ...66, 70 
 
 V. Stewart, 5 Call 16 
 
 V. Stuart et al., 6 Munf 177 
 
 Penn v. Guggenheimer, 76 Va 
 
 674,675, 677 
 
 V. Ingles, 82 Va 28, 520, 524 
 
 V. I^rd Baltimore, 2 Lead. 
 
 Cas. Eng., 734 
 
 Penningroth v. Penningroth, 71 
 
 Mo. App 583 
 
 Pennybaker v. Laidley, 33 W. Va. 
 
 80, 90, 91, 92, 259, 261 
 
 V. Switzer, 75 Va 340 
 
 Penshallow v. Kimball, 61 N. 
 
 H 2 
 
 People V. Houghtaling, 7 Cal 8 
 
 V. North River Sugar Ref. 
 
 Co., 121 N. Y 265, 266 
 
 V. Sheldon, 8 Am. R. R. & 
 
 Corp. Rep 388 
 
 People's Gas Co. v. Tyner, 131 
 
 Ind 358 
 
 Perkins v. Lane, 82 Va 416 
 
 Perrill V. McKinley, 6 W. Va 272 
 
 Perrot v. Perrot, 3 Atk 350 
 
 Perry v. Campbell, 10 W. Va. . . 249 
 
 V. Pearson, 135 111 98, loi 
 
 Peters v. Bain, 133 U. S 674 
 
 V. Craig, 36 Ky. (6 Dana). . . 39 
 
 Peterson v. Anderson, 25 W. Va.. 
 
 485, 490 
 
 Petit V. Petit, 107 N. Y 302 
 
 Petree v. Brotherton, 133 Ind 287 
 
 Pettijohn v. Woodruff, 86 Va 514 
 
 Petty V. Fogle, 16 W. Va 
 
 26, 27, 28, 29 
 
 Peyton v. Cabell, 25 W. Va 50, 53 
 
 V. Stewart, 88 Va 521 
 
 Pfoutz V. Conford, 36 Pa. St 55 
 
 Phalen v. Clark, 19 Conn 276 
 
 Pharis v. Gere, no N. Y 206 
 
 Phelan v. Gardner, 43 Cal 99 
 
 Phelps V. Watertown, 61 Barb 6 
 
 Philadelphia, etc., Co. v. Edison 
 
 Co., 13 C. C. A 366 
 
 Phillipi V. Phillipi, 115 U. S 417 
 
 Phillips V. Dawle, 1 Neb 406 
 
 V. Ferguson, 85 Va 745 
 
 V. Phillips, 9 Hare 28 
 
 V. Roberts, 26 W. Va 701, 702 
 
 Phinney v. Phinney, 81 Me 732 
 
 Phoenix Ins. Co. v. Erie & W. 
 
 Transp. Co., 117 U. S 559, 560 
 
 V. First Nat. Bank, 86 Va.. . . 559 
 
 V. Penn. Co., 134 Ind 559 
 
 Physio Med. College v. Wilkin- 
 son, 108 Ind 100, loi 
 
TABIDS OF CASES. 
 
 Ivii 
 
 PAGE 
 Kasa Bluffs Imp. Co. v. Evers, 65 
 
 m. App 721 
 
 Piatt V. Clemens, 4 W. Va 486 
 
 V. St. Clair, 6 Ohio St 108 
 
 Pickens v. Knisely, 36 W. Va 
 
 426, 427.430 
 
 V. McCoy, 24 W. Va 
 
 110,570,571, 574 
 
 Picket V. Morris, 2 Wash. (Va.) . . 
 
 379> 478 
 
 V. Sutter, 5 Cal 99 
 
 Piedmont & A. Ins. Co. v. Maury, 
 
 75 Va 602 
 
 Pierce v. Brown, 7 WaU 89 
 
 V. Higgins, loi Ind 556 
 
 V. Hoover, 142 Ind 287 
 
 V. M. & St. P. R. Co., 24 
 
 Wis 630 
 
 V. Pierce, 71 N. Y 138 
 
 V. Trigg, 10 Ijcigh 208 
 
 Piercy's Heirs v. Piercy, 5 W. Va. 209 
 Pierpont v. Town of Harrisville, 
 
 9 W. Va 374,375 
 
 Pierson v. Hooker, 3 Johns 165 
 
 Piester v. Piester, 22 S. C 192 
 
 Pillow V. Southwestern Imp. Co., 
 
 23 S. E. Rep 504 
 
 Pinckard v. Woods, 8 Gratt 166 
 
 Pinckston v. Brown, 3 Jones. Eq. 276 
 Pindle v. The Bank of Marietta, 
 
 10 Leigh 566 
 
 Pioneer Mfg. Co. v. Phoenix Ins. 
 
 Co., 106 N. C 39 
 
 Pingree v. Coffin, 12 Gray 457 
 
 Pithole Petroleum Co. v. Ritten- 
 
 home, 12 W. Va 392 
 
 Pitman v. Pitman, 11 L,. R. A 450 
 
 Pittmanv. Pittman, 107 N. C 753 
 
 Pittsburgh & C. R. Co. >. Alle- 
 gheny County, 63 Pa. St 723 
 
 Pitzer V. Bums, 7 W. Va 647 
 
 Piatt V. Richmond Y. R. & C. R. 
 
 Co., 20 Jones & S 560 
 
 Platter v. County of Elkhart, 103 
 
 Ind 144 
 
 Plum V. City of Kansas, loi Mo. . 447 
 
 Plummer v. Lord, 5 Allen 434 
 
 Poage V. Wilson, 2 Leigh 29 
 
 Poe V. Paxton, 26 W. Va 622, 708 
 
 Poling V. Maddox, 41 W. Va. .144, 370 
 
 Pollard V. Lumpkin, 6 Gratt 40, 44 
 
 Pollard's Heirs v. Lively, 2 Gratt. 486 
 
 Pollock V. Sutherlin, 25 Gratt 40 
 
 Pope V. Mayor of Savannah, 74 
 
 Ga 6 
 
 Porter v. Jeffries, 40 S. C 464 
 
 V. Porter, 27 Gratt 122, 673 
 
 PAGE 
 
 V. Reed, 27 S. W. Rep 383 
 
 — — V. Spencer, 2 Johns. Ch 28 
 
 V. Young, 85 Va 70 
 
 Post V. McKall, 3 Bland €19 
 
 V. Neaffie, 3 Caines Rep 450 
 
 V. T. C. & St. L. R. Co., 144 
 
 Mass 767 
 
 Postal Tel. Cable Co. v. N. & W. 
 
 R. Co. 87 Va 396 
 
 Potomac Mfg. Co. v. Evans, 84 
 
 Va 641,682 
 
 Potter V. McDowell, 31 Mo 58 
 
 Pouder v. Catterson, 127 Ind 
 
 229, 230 
 
 Powell V. Batson, 4 W. Va 574 
 
 V. Bentley & Gerwig Mfg. 
 
 Co., 34 W. Va 357, 360 
 
 V. Berry, 91 Va 550 
 
 V. Parkersburg, 28 W. Va. 
 
 372, 373 
 
 V. Patison, 10 Cal 629 
 
 V. Sims, 5 W. Va 359 
 
 Poythress v. Poythress, 16 Ga. . . . 222 
 
 Prather v. McClelland, 76 Tex. . . 98 
 
 Pratt V. Bowman, 37 W. Va 
 
 12, 15, 21, 22, 80, 467, 600 
 
 Pressley v. Harrison, 102 Md 
 
 219, 220, 226 
 
 Preston v. Astor, 85 Va 603 
 
 V. Colly, 117 111 604 
 
 V. Nash, 76 Va 481 
 
 Preusser v. Terry, 16 S. W. Rep. . 171 
 
 Price V. Davis, 88 Va 557 
 
 V. McClanahan, 2 Gratt 480 
 
 — =- V. Planters' Nat. Bank, 92 
 
 Va 436 
 
 V. Price, 90 Ga 589 
 
 V. Schaeffer, 161 Pa. St 401 
 
 Prine V. Prine, 36 Fla 595 
 
 Pringle V. Black, 2 Dall 74 
 
 Prosser v. Leatherman, 5 Miss 168 
 
 Pryor v. Adams,'ii Cal 772 
 
 V. Wood, 31 Pa. St 726 
 
 Pucket V. Alexander, 102 N. C 267 
 
 Pugh V. Cameron, 11 W. Va 566 
 
 Pullman v. Aler, 15 Gratt 67 
 
 V. State, 78 Ala 32 
 
 Pumphrey v. Brown, 5 W. Va 
 
 745. 746 
 
 Purcell V. Purcell, 4 H. & M. .588, 589 
 
 Purdy V. Delaware, i Caines 40 
 
 Purtell V. Chicago F. & B. Co., 74 
 
 Wis 696 
 
 Pusey V. Gardner, 21 W. Va 
 
 ... .100, 268, 273, 276, 416, 747, 749 
 Pyles V. Riverside Furniture Co., 
 
 30 W. Va 222, 273 
 
Iviii 
 
 TABLE OF CASBS. 
 
 Q. 
 
 PAGE 
 
 Quarles v. Lacey, 4 Munf 139, 636 
 
 Quebeck Bank v. Carroll, 47 N. 
 
 W. Rej) 56 
 
 Quick V. Milligan, 108 Ind — 142, 143 
 Quiesnel v. Woodlief, 6 Call 18, 20 
 
 PAGE 
 Quincy v. Chicago, B. & Q. R. 
 
 Co., 95 HI 530 
 
 V. Steel, 120 U. S 5 
 
 Quinn v. Stowell Electric Co., 3 
 
 N. E. Rep 359 
 
 Quirk V. Miller, 14 Mont 267 
 
 R. & D. R. Co. V. Childers, 3 L. 
 
 R. A 651 
 
 Radcliff V. Hogh, 2 Rob. Rep. ... 151 
 Rader v. Neal, 13 W. Va 
 
 439. 528, 534 
 
 Radford v. Carwile, 13 W. Va 
 
 426, 427, 436 
 
 V. Folkes, 85 Va 176, 193, 252 
 
 Railroad Co. v. Dunlap, 86 Va — 466 
 
 V. I^ewis, 76 Va 529 
 
 Ramsey v. Thompson Mfg. Co., 
 
 116 Mo 118 
 
 Randall v. Duff, 79 Cal 731 
 
 Rangeley v. Spring, 21 Me 144 
 
 Ransom v. High, 37 W. Va 
 
 496, 507, 508, 510 
 
 Rapp V. Ruhling, 122 Ind 223 
 
 Rathbone v. Parkersburg Gas Co., 
 
 31 W. Va 116 
 
 Ratliff V. Van Dykes, 89 Va 549 
 
 Ravenswood v. Fleming, 22 W. 
 
 Va ^70 
 
 Rawlings v. Rawlings, 75 Va 397 
 
 Rawlston v. Miller, 3 Rand 11, 362 
 
 Ray bum v. Rayburn, 34 W. Va. . 162 
 Raymond v. San Gabriel L. & W. 
 
 Co., 4 C. C. A 541 
 
 Re Atkinson, 16 R. 1 740, 745 
 
 Re Barney's Will, 70 Vt 94 
 
 Re Crawford, 113 N. Y 196 
 
 Re Halnert's Will, 73 N. Y. St. . . 98 
 
 Re Hunt, 141 Mass 761 
 
 Re Langevin's Will, 45 Minn 575 
 
 Re Phoenix Ins. Co., 117 U. S 560 
 
 Re Pitt's Estate, 55 N. W. Rep. . . 98 
 
 Re Scott, I Redf 166 
 
 Re Schuyler's Steam Towboat Co. , 
 
 136 N. Y 
 
 229 
 
 Re Spencer, 16 R. 1 183 
 
 - - - - - 265 
 
 82 
 
 Re Sugar Trust Case, 54 Hun 
 Rea V. Longstreet, 54 Ala 
 
 Redd V. Dyer, 83 Va 404 
 
 Redfeam v. Ferrier, i Dow. Pari. 
 
 Cas 726 
 
 Redmond v. Dickerson, i Stock. 
 
 Ch 5 
 
 Reed v. Birmingham, 92 Ala 369 
 
 V. McCloud, 
 
 231 
 188 
 
 322 
 
 758 
 
 V. Patterson, 7 W. Va 11, 364 
 
 V. Pelletier, 28 Mo 58 
 
 V. Reed, 17 N. J. Eq 130 
 
 V. Richmond & A. R. Co., 84 
 
 Va 
 
 Reed et al v. Cather's Adm'r et 
 
 al., 18 W. Va 
 
 Reed & Roper v. Hedges, 16 W. 
 
 Va 211, 
 
 Regan v. West, 115 111 
 
 Reger v. O'Neal, 33 W. Va 565, 567 
 
 Reid V. Reid, 21 N. J. Eq 654 
 
 Reidy v. Small, 154 Pa. St 755 
 
 Reilly v. Barr, 34 W 286, 289, 290 
 
 V. Clark, 31 W. Va 620 
 
 V. Ogleby, 25 W. Va 764 
 
 Reinhardt v. Reinhardt etal., 2i 
 
 W. Va 129, i66 
 
 Reitz & Co. V. Bennett et al., 6 
 
 W. Va 174 
 
 Remington v. Superior Ct., 69 
 
 Cal 669 
 
 Remington Paper Co. v. O'Daugh- 
 
 erty, 16 Hun 87 
 
 Renick v. Luddington, 14 W. Va. 
 
 524,615,617,618 
 
 V. Luddington, 20 W. Va. . . 
 
 443, 482 
 
 v.R enick, 5 W. Va 23 
 
 Renff V. Coleman, 30 W. Va 187 
 
 Rex V. Creel, 22 W. Va 400 
 
 Rexroad v.McQuain, 22 W. Va. . 185 
 
 Reynolds v. Adden, 136 U. S 229 
 
 V. Bank of Virginia, 6 Gratt. 646 
 
 V. Everett, 144 N. Y 387 
 
 V. Gawthrop, 37 W. Va...286, 288 
 
 V. Necessary, 88 Va 531, 545 
 
 V. Palmer, 21 Fed. Rep 460 
 
 V. Pettyjohn et al., 79 Va. . . 
 
 230, 761 
 
 V. Quick, 128 Ind. . 225 
 
 V. Sumner, 126 lU 758 
 
 Rhodes v. Amsinch, 38 Md 607 
 
 V. Cousins, 6 Rand 283 
 
 V. Hilligross, 16 Ind. App. . . 230 
 
 — ; — V. Wilson, 19 Atl. Rep. . 220 
 
 Rice V. Boyer, 108 Ind 151 
 
 Richards v. Green, 9 C. C. A '. 576 
 
TABLE OF CASBS. 
 
 lixr 
 
 PAGE 
 
 Richards V. McClelland, 29 Pa 150 
 
 V. Merrimac & C. R. Co., 44 
 
 N. H 723 
 
 V. Richards, 19 111. App 661 
 
 V. Richards, 136 Mass 509 
 
 Richardson v. Buhl, 77 Mich.. 265, 266 
 V. Donahue et al., i6 W. Va. 
 
 166, 362, 363, 641 
 
 V. N. & W. R. Co. 37 W. Va. 
 
 689, 704 
 
 ■ V. Ralphsnyder, 40 W. Va.. 
 
 289. 304 
 
 V. Richardson, 148 HI 313 
 
 Richland's Glass Co. v. Hiltebei- 
 
 tal, 92 Va 702, 703 
 
 Rickard v. Schley, 27 W. Va..394, 456 
 Ridden v. Thrall, 125 N. Y 
 
 312. 313. 314 
 
 Riddle v. Town of Charleston, 43 
 
 W. Va 369 
 
 V. Whitehill, 135 U. S 417 
 
 Ridgely v. Ridgely, 79 Md 
 
 594, 595, 596 
 
 Ridgy V. McNamara, 6 Ves 411 
 
 Rie V. Rie, 34 Ark 666 
 
 Riehl V. Evansville Foundry 
 
 Ass'n, 104 Ind 763 
 
 Rigdon V. Wolcott, 141 111 100, loi 
 
 Riggs V. Armstrong, 23 W. Va.. 632 
 
 V. Boyhan, 4 Biss 485 
 
 V. Palmer, 1 13 N. Y 458 
 
 Righter v. Riley, 42 W. Va. . .430, 636 
 Rigney v. Tacoma L. & W. Co, 9 
 
 Wash 347 
 
 Riley v. Carter, 76 Md 287 
 
 V. Carter, 19 L. R. A 206 
 
 V. Jarvis, 43 W. Va 520 
 
 V. Sherwood, 144 Mo 94, 98 
 
 Ringold V. Burley, 59 Am. Dec 54 
 
 — V. Suiter, 35 W. Va. ...72, 76, 303 
 
 Rinker v. Street, 33 Gratt 328 
 
 Risewick V. Davis, 19 Md 54, 56 
 
 Rison V. Moon, 91 Va 38, 446 
 
 V. Newberry, 90 Va 
 
 80, 90, 549, 550 
 
 Roanoke Brick & Lime Co. v. 
 
 Simmons, 20 S. E. Rep.... 488, 490 
 Roanoke St. Ry. Co. v. Hicks, 32 
 
 S. E. Rep 768 
 
 Roberts v. Abbot, 127 Ind 57s 
 
 V. Coleman, 37 W.Va 
 
 269, 318,319,499,500 
 
 V. Hughes, 80 111 404 
 
 V. McClelland, 82 111 406 
 
 V. McMiUan, 9 Lea (Tenn.).. 575 
 
 V. Northern P. R. Co., 158 U. 
 
 S 84 
 
 V. Stevens, 84 Me 756, 757 
 
 Robertson v. Cole, 12 Tex 595 
 
 v. Hoge, 83 Va 69 
 
 PAGB 
 Robertson v. Hogshead, 3 Leigh.. 667 
 
 Robeson v. Miller, i B. Mon 133 
 
 Robins v. Armstrong, 84 Va. .299, 301 
 
 Robinson v. Allen, 85 Va 
 
 194, 604, 607 
 
 V. Bank, 17 S. E. Rep 621 
 
 V. Braden, 44 W. Va 466, 471 
 
 V. Dix, 18 W. Va 418, 709 
 
 V. Liffer, 3 Atk 350 
 
 V. Loomis, 51 Pa. St 683 
 
 V. Neill, 34 W. Va 427 
 
 V. Shacklett, 29 Gratt 127 
 
 V. Taylor, 42 Fed. Rep 223 
 
 V. Woodford, 37 W. Va 427 
 
 Robinson Notion Co. v. Ormsby, 
 
 33 Neb 60 
 
 Robrecht v. Robrecht, 34 S. E. 
 
 Rep 393 
 
 Rock V. Matthews, 35 W. Va 
 
 102, 267, 275, 458, 349 
 
 Rock Island v. McEniry, 39 111. 
 
 App 147 
 
 Rockwell V. Morgan, 13 N. J. Eq. 130 
 
 Rodge V. Giese, 43 N. J. Eq 345 
 
 Rodgers v. McClure, 4 Gratt 555 
 
 Rogan V. Walker, i Wis 415 
 
 Rogers v. Central L. Ins. Co., 9 
 
 West Rep 149 
 
 V. Coal River Boom & D. Co. 
 
 39 W. Va 154 
 
 V. Corothers, 26 W. Va 
 
 40, 43, 46 
 
 V. Evarts, 17 N. Y. Supp 387 
 
 V. Hand, 39 N. J. Eq l66 
 
 V. Lynch, 44 W. Va 438 
 
 V. Rogers, 37 W. Va 381 
 
 V. Rogers, 52 S. C 747 
 
 V. Rogers, ii i N. Y 757 
 
 V. Rogers, 4 Paige 302 
 
 V. Verlander, 30 W. Va 
 
 285, 286, 297, 298 
 
 Rogerson v. Shepherd, 33 W. Va. 345 
 Roggenkamp v. Roggenkamp, 15 
 
 C. C. A 199 
 
 Rohrers v. Travers, 11 W. Va 568 
 
 Roller V. Kling, 150 Ind 98 
 
 Rollins V. Fisher, 17 W. Va. . .394, 399 
 
 V. Hess, 27 W. Va 360 
 
 Romans V. Langevins, 34 Minn... 530 
 
 Rome v. Peabody, 102 Ind 449 
 
 Rooker v. Benson, 83 Ind 556 
 
 Roosevelt v. Mark, 6 Johns. Ch. . . 770 
 
 Roosevelt's Matter, 5 Redf 197 
 
 Root et al v. Davis, 51 Ohio St. . . 728 
 
 Rootes V. Webb, 4 Munf 167- 
 
 Roots V. Salt Co., 27 W. Va 
 
 400, 517, 518 
 
 Rose V. Brown, 11 W. Va 299 
 
 V. Brown, 17 W. Va 275, 399 
 
TABLB OF CASES. 
 
 PAGB 
 Roseberry v. Roseberry, 27 W. 
 
 Va 430 
 
 Rosenbamn v. Goodman, 78 Va. . 526 
 
 Ross V. Austin, 4 H. & M 71 
 
 V. Clark, 32 Mo 56 
 
 V. Gill, 4 Call 326 
 
 V. Overton, 3 Call 35, 40 
 
 V. Peyson, 160 111 95 
 
 V. Pleasants, i Wash 243 
 
 V. Ross, 78 111 588 
 
 Roth V. Michaels, 125 111 742 
 
 Rossett V. Fisher, et al., II Gratt. 
 
 636, 644 
 
 Rothmiller v. Stein, 143 N. Y 460 
 
 Rountree v. Britt, 94 N. C 193 
 
 Roush V. Miller, 39 W. Va 127, 128 
 
 Rowland V. Rowland et al., xi W. 
 
 Va 190 
 
 V. Thompson, 73 N. C 413 
 
 Rowton V. Rowton, i H. & M 133 
 
 Roysdale v. Hagy, 9 Gratt 735 
 
 Rucker v. Moss, 84 Va 286, 292 
 
 Ruffner v. Hewitt, 14 W. Va 
 
 400, 518, 570 
 
 PAGE 
 
 Rnfiner v. Lewis, 7 Leigh 505,- 506 
 
 Ruffner et al. v. Mairs et al,, 33 
 
 W. Va 227, 228 
 
 V. Welton Coal & Salt Co., 
 
 36 W. Va 304 
 
 Ruggles V. Lawson, 13 Johns 312 
 
 Ruhl V. Rodgers, 29 W. Va 65 
 
 V. Ruhl, 24 W. Va. .214, 397, 398 
 
 Rumble v. Spencer, 67 Mich 150 
 
 Runyan v. Price, 16 Ohio St 576 
 
 Russell V. Chicago Trust & S. 
 
 Bank, 139 111 451 
 
 V. Dickishied, 24 W. Va., 
 
 9. 771 
 
 V. Keeran, 8 I<eigh 16 
 
 Russul V. Kern, 16 C. C. A 366 
 
 Rust V. Rust, 17 W. Va 504, 505 
 
 Rutherford v. Jones, 14 Ga 2 
 
 V. Mays, 76 Va 675 
 
 Ryan v. McLeod, 32 Gratt 397 
 
 Ryan Drug Co. v. Hvambsahl, 81 
 
 Wis 62 
 
 Ryers V. Wheeler, 25 Wend 494 
 
 Sablett & Carey v. Wood, 76 Va.. 68 
 
 Sage V. Hammond, 27 Gratt 248 
 
 Salisbury v. Salisbury, 49 Mich. . . 87 
 
 Salter V. Ely, 56 N. J. Eq 94 
 
 Sample v. Sample, 34 Kan 510 
 
 Samson v. Young, 50 N. H 36 
 
 Samuel v. Marshall et ux., 3 
 
 Leigh 99, 271 
 
 Sanders v. Askew, 79 Ala. 643 
 
 V. Bagwell, 37 S. C 519 
 
 Sandheger v. Hosey, 26 W. Va. .. 
 
 64, 66, 67, 68 
 
 Sands v. Beardsley, 32 W. Va. . . . 574 
 Sandwich Mfg. Co. v. Robinson, 
 
 83 Iowa 722 
 
 Saratoga Co. v. Deyoe, 77 N. Y... 470 
 
 Sargent v. Parsons, 12 Mass 506 
 
 Saum V. Cofielt, 79 Va 758 
 
 Saunders v. Griggs, 81 Va. . . .600, 607 
 Sav. & L. Ass. V. Bennett, 106 
 
 Cal 629 
 
 Savage v. Meas, 2 Rob. Rep 11 1 
 
 V. People's B. L. & S. Ass., 
 
 45 W. Va 55 
 
 Savannah & M. R. Co. v. Lan- 
 caster, 62 Ala 723 
 
 Sayers v. Crockett, 90 Va 183 
 
 Sayles v. Sayles, 21 N. H 302 
 
 Sayre v. Harpold, 33 W. Va. ..274, 284 
 
 V. King, 17 W. Va. .476, 477, 524 
 
 V. Weil, 94 Ala 740 
 
 Sajres V. Hoskinson, no Pa. St.. 130 
 Scanlon v. Cobb, 85 111 206 
 
 Scarborough v. Smith, 18 Kan. . . 510 
 Schaefer v. Winderlee, 39 N. E. 
 
 Rep 461 
 
 Schaidt v. Bland, 66 Md 143 
 
 Schenbly v. Schenbly, 26 111 132 
 
 Scheubert v. Honel, 152 111 605 
 
 Schipper v. City of Aurora, 121 
 
 Ind 147- 
 
 Schlect's Appeal, 60 Pa. St 220 
 
 Scluneltz v. Rix, 95 Va 629 
 
 Schmidt v. Schmidt, 29 N. J. Eq. 670 
 Schneitzius v. Bailey, 45 N. J. Eq. 395 
 
 School Dis. V. Gage, 39 Mich 73 
 
 School Dis. Kansas City v. Stock- 
 ing, 138 Mo 315 
 
 Schooley v. Romain, 31 Md 683 
 
 Schoonover v. Bright, 24 W. Va. 
 
 o ,. M" •••;.••, 351, 354, 355, 39^ 
 
 Schultz V. Pulver, 11 Wend 172 
 
 Schumaker v. Mather, 133 N. Y. . 259, 
 
 Schurtz V. Johnson, 28 Gratt 63S 
 
 Schutler v. Brandfass, 41 W. Va. 89, 
 Schwartzbach v. Protective Union. 
 
 25 W. Va ; 257 
 
 Scott v. Calvill, 4 Miss 576, 
 
 V. Luddington, 14 W. Va 
 
 ■•;:•■, ••"•••399, 609,613 
 
 V. Neely, 14 U. S 5 
 
 V. Searles, 15 Mass 167 
 
 V. Smith, 121 N. C 367 
 
 V. Wharton, 2 H. & M... '" 351 
 
 Scraggs V. Hill, 43 W. Va. . . .2^, 705 
 
TABLE OF CASES. 
 
 M- 
 
 PAGE 
 Scranton, etc., So's Appeal, i L. 
 
 R. A 148 
 
 Scruggs V. Burrus, 25 W. Va 513 
 
 Seabright v. Seabright, 28 W. Va. 
 
 312, 313, 314, 316, 317, 412 
 
 Seagan v. McCabe, 92 Mich 131 
 
 Seargent v. Denly, 87 Va 695 
 
 Searles v. Schufield, 5 Paige... 
 
 594, 596 
 
 Sears v. Choate, 146 Mass 756 
 
 V. Putnam, 102 Mass 742 
 
 Sebom v. Beckwith, 30 W. Va... .760 
 Sebrig v. Merserean, Hopk. Ch. . . 509 
 Seckendorf v. Ketcham, 67 How. 
 
 Pr 58 
 
 Sedgwick V. Taylor, 84 Va 756 
 
 Seeberger v. Hobert, 8 N. E. Rep. 460 
 
 Seeger v. Mueller, 133 111 145 
 
 SeeSif V. Forgey, i Cow 134 
 
 Segar v. Edwards, 11 Leigh 32 
 
 Seibel v. Rapp, 85 Va 494, 495 
 
 Seibert v. Minneapolis, etc., R. 
 
 Co.,52Minn 733 
 
 Siedentopf v. Annabil, 6 Neb 58 
 
 Seller v. Mohn, 37 W. Va 746 
 
 Seilheimer v. Seilheimer, 40 N. J. 
 
 Eq 594 
 
 Seisler v. Smith, 46 N. E. Rep 574 
 
 Sellers v. Sellers, 141 Ind 583 
 
 V. Stoffel, 139 Ind 225, 226 
 
 Sellick V. Ad^ns, 15 Johns 36 
 
 Senfers v. 6enke, 73 111 130 
 
 Sessions v. Rice, 70 Iowa 143 
 
 Setzer v. Beale et al., 19 W. Va. . . 512 
 
 V. Setzer, 97 N. C 595 
 
 Shackleford v. Beck, 80 Va 698 
 
 V. Handley, 10 Am. Dec 272 
 
 Shakeford v. Shakeford, 32 Gratt. 514 
 
 Shafer v. O'Brien, 31 W. Va 550 
 
 Shaler v. Bimistead, 99 Mass 95 
 
 ShaUey v. Spihnan, 19 Fla 82 
 
 Shank v. Groff, 43 \V. Va 715 
 
 V. Groff, 45 W. Va 730 
 
 V. Knight, 12 W. Va 
 
 364, 391. 392. 393 
 
 Shannon v. Hanks, 88 Va 223 
 
 V. Marmaduke, 14 Tex 32 
 
 Sharp V. Clark, 4 Nev 5 
 
 Shattuck V. Knight, 25 W. Va.. . . 
 
 62, 67, 292, 293, 486 
 
 V. Watson, 53 Ark 267 
 
 Shaver v. McCarty, no Pa. St 98 
 
 Shaw V. Beebe, 35 Vt 144 
 
 V. Biers, 84 Ind 495 
 
 V. Coster, 8 Paige.. .782, 783, 784 
 
 Shearman v. Christian et al., i 
 
 Rand 168 
 
 Sheegog v. Perkins, 4 Baxt 312 
 
 Sheffield Water Co. v. Yeomans, 
 
 L. R. 2 Ch 470 
 
 PAGB 
 Shenandoah Val. R. Co. v. Dun- 
 lap, 86 Va 80, 89, 529, 549 
 
 Shepard v. Shepard, 7 Johns. Ch. 302 
 Sheppard v. Graff, 34 W. Va..347, 34S 
 
 V. Starks, 3 Munf 181 
 
 V. Turpin, 3 Gratt 392, 758 
 
 Sheridan v. Colvin, 70 111 4, 6 
 
 Sherill v. Bench, 37 Ark 61 
 
 Sherman v. American Stove Co., 
 
 85 Mich 118, n9 
 
 V. Clark, 4 Nev 5 
 
 v. Sherman, 8 W. Va 675 
 
 Sherrard v. Keiter, 32 W. Va 621 
 
 Sherry v. Perkins, 147 Mass 388 
 
 Shewen v. Vanderhorst, i Russ. 
 
 &M 619 
 
 Shields v. Commonwealth, 4 Rand. 421 
 Shields v. McClung, 6 W. Va 
 
 377, 378, 393, 403, 472, 474 
 
 Shmer v. Garrison, 30 W. Va 
 
 182, 193, 416, 464. 
 
 Shinn v. Board of Education, 39 
 
 W. Va 389 
 
 Shipman v. Bailey, 20 W. Va 
 
 566, 570, 571 
 
 Shirley v. Taylor, 5 B. Mon. .204, 205 
 
 Shobe V. Carr, 3 Munf 182 
 
 Shormon v. Eakin, 47 Ark 154 
 
 Showalter v. Hambrick, 25 S. E. 
 
 Rep 529 
 
 Shrae v. Lawson, 22 Wis 485 
 
 Shuman v. Shuman, 9 W. Va 138 
 
 Shumate v. Crockett, 43 W. Va. . 624 
 
 Sidlinger v. Kerkow, 82 Cal 38 
 
 Sillings v. Bumgardner, 9 Gratt . . 326 
 
 Silvens v. Porter, 76 Pa. St 434 
 
 Silverman v. Bullo'fck, 98 111 726 
 
 V. Greaser, 27 W. Va 298 
 
 Simmons v Lyles, 27 Gratt 126 
 
 Simmons Hardware Co. v. Waibel, 
 
 I S. D 2J4, 219 
 
 Simms v. Everhardt, 102 U. S 151 
 
 Simon v. Ellison, 22 S. E. Rep. . . 284 
 
 Simons v. Simons, 33 Gratt 771 
 
 Simpkins v. White, 43 W. Va 631 
 
 Simpson v. Edmiston, 23 W. Va. 
 
 83,87 
 
 Suns V. Femll, 45 Ga 272 
 
 V. Sims, 94 Va 397 
 
 Sinart v. Waterhouse, 6 Humph.. 168 
 
 Sinclair v. Sinclair, 79 Va 745 
 
 Sine V. Fox, 33 W. Va 429 
 
 Singer Mfg. C&. v. Bennett, 28 W. 
 
 Va - no 
 
 Singleton v. Mann, 3 Mo 32 
 
 Sinkons v. Cooper, 2 W. Va 533 
 
 Sinnett v. Crall, 4 W. Va 
 
 405, 406, 625 
 
 Sis v. Boreman, 11 App. D. C 495 
 
 Sisemore v. Sisemor, 17 Or. ., 654 
 
Ixii 
 
 TABLE OF CASBS. 
 
 PAGE 
 Skinner v. Harrison Twp., ii6 
 
 Ind 758 
 
 V. Terrell, 159 Mass 562 
 
 Skipworth v. Cunningham, 8 
 
 Leigh 634 
 
 Slater v. Moore, 86 Va 286 
 
 Slegel V. Herbine, 15 L. R. A. . . . 86 
 
 Sloan V. Sloan, 25 Fla 84 
 
 Slouffer V. Niple, 40 Md 56 
 
 Small V. Small, 42 Iowa 592 
 
 Smart v. Waterhouse, 6 Humph.. 168 
 
 Smith V. Arthur, no N. C i59 
 
 V. Boston C. & M. R. Co., 36 
 
 N. H 39 
 
 V. Britton, 2 P. &H 176 
 
 V. Cornelius, 41 W. Va 
 
 119, 120 
 
 V. Crowley, 29 Kan 513 
 
 V. Douglass, 16 111 36 
 
 V. Easton, 54 Md 62 
 
 V. Grosjean, 1 P. & H 778 
 
 V. Henkle, 81 Va 273 
 
 V. Henline, 174 111 93 
 
 V. Henning, 10 W. Va. . .169, 170 
 
 V. Jenny, 4 H. & M 71 
 
 V. Lowther, 35 W. Va 737 
 
 V. McClain, 11 W. Va 
 
 370,377,476 
 
 V. McCourt, 45 Pac. Rep 683 
 
 V. Maine, 25 Barb 317 
 
 ^ — V. Marks, 2 Rand 28, 29 
 
 — '■ — V. Myers, 109 Ind 6 
 
 V. New Orleans Canal & B. 
 
 Co., 141 U. S 5 
 
 V. O'Keefe, 43 W.Va 83 
 
 V. Parsons, 33 W. Va 
 
 II, 603, 623 
 
 V. Pattie, 81 Va 176 
 
 V. Patton, 12 W. Va 714 
 
 V. Patton, 23 W. Va 746 
 
 V. Profitt, 82 Va 489 
 
 V. Richards, 13 Pet 89 
 
 V. Shaw, 150 Mass 134 
 
 V. Smith, 4 Rand 40, 41 
 
 V. Smith, 167 Mass 165 
 
 V. Smith, 4 Paige 670 
 
 V. Smith, 92 Va 768, 771, 775 
 
 V. Taylor, 11 Leo 8 
 
 V. Thompson, 7 Gratt lol 
 
 V. Tinley, 32 W. Va 451 
 
 V. Tramel, 68 Iowa 154 
 
 V. Turley, 32 W. Va 
 
 -.745. 747, 748 
 
 V. Turner, 4 Ired. (N. C). . . 777 
 
 V. Warden, 19 Pa. St 153 
 
 V. Washington, etc., R. Co., 
 
 33 Gratt 647 
 
 V. Wehrle, 41 W. Va. . . , 139 
 
 V. Wells, 20 How. Pr 222 
 
 V. Zumbro, 41 W. Va 108, 311 
 
 PAGB 
 Smith Bridge Co. v. Burman, 41 
 
 Ohio St 696 
 
 Snabely v. Pickle, 24 Gratt 717 
 
 Snider v. Brown, 3 W. Va 394, 625 
 
 Snodgrass v. Knight, 43 W. Va.. . 97 
 Snow V. County Comm'rs, 112 N. 
 
 C 695 
 
 V. Hutchins, 160 Mass 144 
 
 V. Wheeler, 113 Mass 385 
 
 Snyder v. Botkin, 37 W. Va 
 
 483, 484, 616 
 
 V. Cabell, 29 W. Va 358, 359 
 
 V. Grandstaff, 96 Va 466 
 
 V. Lunsford, 9 W. Va 294 
 
 V. Martin, 17 W. Va 
 
 482, 483, 616 
 
 Society v. Pendleton, 7 W. V. ... 752 
 Sodiker V. Applegate, 24 W. Va... 512 
 
 Somers v. Somers, 39 Kan 593 
 
 Somerville v. Somerville, 26 W. 
 
 Va 400 
 
 Sourwine v. Supreme lyodge K. of 
 
 P., 12 Ind 451 
 
 South Ottawa v. Perkins, 94 U. S. 146 
 South Penn Oil Co. v. Mclntyre, 
 
 44 W. Va 202, 206 
 
 Southall V. Farish, i L. R. A 555 
 
 V. Roush, 85 Va 522 
 
 Southall's Adm'r v. Taylor et al., 
 
 14 Gratt 176 
 
 Southern Cal., etc., Co. v. Union 
 
 L. &T. Co., 12 C. C. A 721 
 
 Southern Development Co. v. 
 
 Silva, 125 U. S 277, 459 
 
 Southern Marble Co. v. Stegall, 
 
 90 Ga 322 
 
 Southern R. Co. v. Franklin & P. 
 
 R. Co., 44 L. R. A 346 
 
 Southwick V. Southwick, 97 Mass. 654 
 
 Spalding v. Ewing, 149 Pa. St 267 
 
 Spaulding v. Harvey, 13 L. R. A. 555 
 
 Spect V. Spect, 88 Cal 728 
 
 Speer v. Speer, i McCord 3 
 
 Speier v. Opfer, 2 L. R. A 149, 151 
 
 Spencer v. Deagle. 34 Mo 58 
 
 V. Lee, 19 W. Va 127 
 
 V. Railroad Co., 23 W. Va. . . 
 
 ••■••■:• 374, 375,376 
 
 V. Smith, 34 W. Va 
 
 „ ■•.•■■• -286, 296, 297, 303, 304 
 
 Speny v. Gibson, 3 W. Va 473 
 
 Spidell V. Henrici, 120 U. S...417, 758 
 Spilman v. City of Parkersburg, 35 
 
 W.Va 368 
 
 Spithill V. Jones, 3 Wash 84 
 
 Spooner's Adm'r V. Hilbish's Ex'r, 
 
 92 Va 284 
 
 Spotswood V. Dandridge, 4 H. & 
 
 757 
 
 M. 
 
 Spratt V. Spratt, 76 Mich 98 
 
TABLE OF CASES. 
 
 Ixiii" 
 
 PAGU 
 Sprengler v, Knapp, 5 Leigh 
 
 568,569 
 
 Springfield F. & M. Ins. Co. v. 
 
 Hull, 15 Ohio St 274 
 
 Springston v. Morris, 34 S. E. 
 
 Rep 27s 
 
 Spuriock V. Noe, 39 L. R. A 204 
 
 Stackhouse v. Stackhouse, 36 Atl. 
 
 Rep 656 
 
 Standard Elevator Co. v. Crane 
 
 Co., 6 CCA 365 
 
 Stanford v. Lyon, 37 N. J. Eq 6 
 
 Stanley v. Sutherland, 54 Ind 58 
 
 Stansbury v. Stansbury, 24 W. 
 
 Va 566 
 
 Stanton v. Holmes, 4 Day (Conn.) 
 
 56, 74 
 
 Staples V. Staples, 24 Gratt 178 
 
 Starkie v. Richmond, 155 Mass. . . 347 
 
 State V. Bowen, 38 W. Va 284, 304 
 
 V. Burkholder, 30 W. Va. . . 
 
 284,391 
 
 V. Cox Sons & Co., 44 Atl. 
 
 Rep 711 
 
 V. Cunningham, 83 Wis 6 
 
 V. Eberly, 12 Neb 73 
 
 V Gilligan, 18 Mont 732 
 
 V. Glidden, 55 Conn 387 
 
 V. Graham, 21 Neb 143 
 
 — — V. Hays, 30 W. Va 396, 397 
 
 V. Irwin, 30 W. Va 391 
 
 V. Johnson, 28 W. Va 168 
 
 V. Judge, 39 La. Ann 381 
 
 V. McFetridge, 84 Wis 60 
 
 V. Reuff, 29 W. Va 325 
 
 V. Sears, 43 Pac. Rep 732 
 
 V. Spinangle, 43 L. R. A 418 
 
 V. Ste\iiart, 59 Vt 385 
 
 V. Uhrig, 14 Mo. App 6 
 
 V. Yopp, 97 N. C 357 
 
 State ex rel. Rhodes v. Saunders, 
 
 18 L. R. A 2, II 
 
 State Saving's Bank v. Stewart, 93 
 
 Va 632 
 
 Steadman v. Steadman, 14 Atl. 
 
 Rep 93 
 
 Steam Co. v. Winsor, 20 Wall. . . . 266 
 
 Steams v. Harmon, 80 Va 83, 84 
 
 Stebbins & Lawson v. Bruce, 80 
 
 Va ;;i54 
 
 Steed v. Petty, 65 Tex 151 
 
 Steel v. Jenmngs, Cheeves (S. C). 514 
 
 Steele v. Harkness, 9 W. Va 69 
 
 V. Steele, i MacArth 654 
 
 V. Steele, 9 W. Va 699 
 
 Steenrod v. Coal Co., 27 W. Va.. . 143 
 Steinhardt v. Leman, 41 La. Ann. 60 
 Steinrod v. Railroad Co., 27 W. 
 
 Va 53i> 551 
 
 Stephenson v. King, 81 Ky 312 
 
 PAGE 
 
 Stephenson v. Sloan, 65 Miss 59 
 
 v. Walker, 5 W. Va 42 
 
 Sterling v. Wilkinson, 83 Va 297 
 
 Stevens v. Fisher, 144 Mass 186 
 
 V. McCormick, 90 Va 500 
 
 Stevenson v. Taveners, 9 Gratt. . . 
 
 523. 604, 606, 607 
 
 Stewart v. Allegheny Bank, loi 
 
 Pa 509 
 
 V. Boulware, 133 U. S 235 
 
 V. Case, 16 Vt 36 
 
 V. Stewart, 56 N. J. Eq 94 
 
 V. Stewart, 27 W. Va 409 
 
 V. Stewart, 34 W. Va 581 
 
 V. Stewart, 78 Me 654 
 
 V. Stout, 38 W. Va 427 
 
 V. Vandervort, 34 W. Va 
 
 „ 594, 595,597 
 
 Stewartson v. Stewartson, 15 111. . 591 
 
 Stiefel V. Stiefel, 35 Atl. Rep 656 
 
 Stiles V. Burch, 5 Paige 168 
 
 V. Stiles, 167 111 655 
 
 Stimpson v. Bishop, 82 W. Va 736 
 
 Stockdale v. Hams, 23 W. Va 299 
 
 Stockton v. Farley, 10 W. Va 
 
 427, 428,438 
 
 V. Ford, II How 32 
 
 V. Union Oil & Coal Co., 4 
 
 W. Va II, 513 
 
 Stokes V. Stevens, 40 Cal 513 
 
 Stone v. Reed, 152 Miss 783 
 
 v. Tyree, 30 W. Va..i43, 154, 292 
 
 V, Wetmore, 42 Ga 6 
 
 Storey v. Storey, 120 111 576, 588 
 
 Storrs V. Barker, 6 Johns. Ch 153 
 
 V. Payne, 4 H. & M 782 
 
 Stoughton V. Leigh, i Taunt 131 
 
 Stout V. Golden, 9 W. Va 699 
 
 V. Phillipi M. & M. Co., 41 
 
 W. Va 408, 491, 725 
 
 Stovall V. Border Grange Bank, 
 
 78 Va 526 
 
 Stovali's Ex'rs v. Wilson et ux., 
 
 2 Munf 167 
 
 Stowell V. Pike, 2 Me 727 
 
 Strathmere v. Bowes, 2 Bro 350 
 
 Straughan v. Wright, 4 Rand .... 496 
 
 Strauss v. Bodiker, 86 Va 616 
 
 v. B. & L. Ass., 117 N. C 733 
 
 Strayer v. Long et al., 86 Va 
 
 139. 622,623, 758 
 
 Stnbhng v. Splint Coal Co., 31 
 
 W. Va 165 
 
 Striker v. Mott, 2 Paige Ch 509 
 
 Stringer v. Toy et al., 33 W. Va. 
 
 „ 39,42 
 
 Strouse v. Lawrence, 160 Pa. St... 191 
 
 Stuart V. Coulter, 4 Rand 496 
 
 V. Supervisors of Lasalle, 83 
 
 111 6 
 
-Ixiv 
 
 TABLE OF CASES. 
 
 PAGB 
 
 Sturdevant v. Pike, I Ind 31 
 
 V. Wallack, 141 Mass 143 
 
 Sturm V. Chalfant, 38 W. Va 
 
 286, 289, 29c 
 
 Stunner v. County Court, 42 W. 
 
 Va 389 
 
 Sturton V. Richardson, 3 Mees & 
 
 W 506 
 
 Stuyvesant v. Hall, 2 Barb. Ch. . . 165 
 
 V. Peckham, 3 Edw. Ch 769 
 
 Styles V. Laurel Fork Oil & Coal 
 
 Co., 45 W. Va 114 
 
 Suan V. Cafl5e, 122 N. Y 434 
 
 Sullivan v. Hergan, 17 R. I. . .457, 458 
 
 V. Homer, 41 N. J. Eq 191 
 
 V. Winthrop, i Sumn 182, 183 
 
 Suddington v. Handley, 7 W. Va. 377 
 Sulphur Mines Co. v. Thompson's 
 
 Heirs, 93 Va 631, 643 
 
 Summers v. Darne, 31 Gratt 127 
 
 V. Kanawha County, 26 W. 
 
 Va 644 
 
 Sup. Sit. Iron Hall v. Baker, 20 
 
 L. R. A 220 
 
 PAGE 
 Surber v. McClintic, 10 W. Va 
 
 347, 717, 721 
 
 Surber's Heirs v. Kent et al., 5 
 
 W.Va 166 
 
 Sure V. Linsfeldt, 82 Wis 649 
 
 Sutton V. McKinney, 82 Va 621 
 
 Swann, Adm'r v. Deem, 4 W. Va. 
 
 37,38 
 
 Swann v. Summers, 19 W. Va 74 
 
 V. Thayer, 36 W. Va 415, 416 
 
 Swearinger v. Lahner, 93 Iowa. . . 683 
 Sweeney V. Grape Sugar Co., 30 
 
 W. Va 290 
 
 V. Williams, 36 N. J. Bq 8 
 
 Sweetzer v. Claflin, 74 Tex 73 
 
 Swing V. Bentley & Gerwig Fur- 
 niture Co., 45 W. Va 221, 229 
 
 Swisher v. Malone, 31 W. Va 477 
 
 Switzer v. Switzer, 26 Gratt 302 
 
 V. Wellington, 40 Kan 73 
 
 Swope V. Chambers, 2 Gratt 185 
 
 Sylvester v. Reed, 3 Edw 222 
 
 T, 
 
 Tabb V. Hughes, 3 S. E. Rep 603 
 
 Talbot V. King, 32 W. Va 357 
 
 Taliafero v. Forsyth, 1 1 Leigh 275 
 
 Talicy V. Stark, 6 Gratt 208 
 
 Tite V. Greensboro, 114 N. C 367 
 
 V. Liggart, 2 Leigh 604 
 
 Tausig V. Hart, 58 N. Y 32 
 
 Tavener v. Barret, 21 W. Va 
 
 438, 549 
 
 Taxwell v. Whittle, 13 Gratt 619 
 
 Taylor v. Bruen, 2 Barb 769 
 
 v. Burlington, etc., R. Co., 5 
 
 Iowa 74 
 
 — — v. Cussen, 90 Va 158 
 
 v. Galloway, i Ohio 171 
 
 V. Gillean, 23 Tex 73 
 
 V. Insurance Co., 9 How. . . . 456 
 
 V. Hahnke, 26 Kan 62 
 
 V. Knox, I Dana (Ky.) 31 
 
 V. Moore, 2 Rand 139 
 
 V. Netherwood, 91 Va 699, 700 
 
 V. Wilburn, 20 Mo 93 
 
 V. Willard, 118 N. Y 493, 494 
 
 V. 2^pp, 14 Mo 144 
 
 Taylor's Amn'r v. Nicholson, i H. 
 
 & M 44, 46 
 
 Taylor's Estate, 18 L. R. A 313 
 
 Taylor's Ex'rs v. Cox, 32 W. Va. . 
 
 „ 53,524 
 
 Teachout v. Van Hosen, 76 Iowa. 460 
 
 Tefft V. Tefft, 35 Ind 594 
 
 Telford v. Barney, i Green 576 
 
 Tennant, Adm'r, v. Divine, 24 W. 
 
 ^ Va 37,40,48 
 
 Tennant v. Pattons, 6 Leigh 412 
 
 V. Tennant, 43 W. Va , . 750 
 
 Terry v. Buffington, 11 Ga 98, 99 
 
 v. Fitzgerald, 32 Gratt 637 
 
 Teters v. Railroad Co., 35 W. Va. 768 
 Tewksburg V. Spruance, 75 111.. . 32 
 Texas Mexican Ry. Co. v. Wright, 
 
 ^ 3iIv.R. A.. .377,472 
 
 Texas & P. R. Co. v. Gay, 25 L. 
 
 R. A 215, 229 
 
 Texas Standard Oil Co. v. Adue, 
 
 83 Tex 265, 265 
 
 Textor v. Shipley, 77 Md 83 
 
 Thellusen v. Woodford, 4 Ves. 
 
 Jr 743, 744 
 
 Thorn V. Woodruff, 5 Ark 74 
 
 Thomas v. Brown, 10 Ohio St. . . . 302 
 
 V. Davidson, 77 Va 403 
 
 V. Lewis, 89 Va 313 
 
 V. Linn, 40 W. Va 
 
 • • •;; •• ,v • • -645. 726, 763 
 
 V. Moore, 52 Ohio St 168 
 
 V. Musical Protective Union. 
 
 121 N.Y ' 3 - 
 
 ^— V. Rector, 23 W. Va '.■.188 
 
 V. Stewart, 91 Va 48s 
 
 —-v. Tumer,87Va 95 
 
 Thompson v. Bostic, i McMul. 
 
 Eq... ' c 
 
 — v.ciark,' 81 va.'.";.';;;;;;774. 7,, 
 
 V. Compton, 93 Ga . 457 
 
TABI<E OF CASES. 
 
 Ix^lr 
 
 PAGE 
 
 Thompson v. Dater, 57 Hun 62 
 
 V. Btowah Iron Co., 91 Ga. . 81 
 
 V. Fonda, 4 Paige 134 
 
 ■ V. Halstead, 44 W. Va 638 
 
 V. Meek, 7 Leigh 162 
 
 V. Taylor, no N. C 698 
 
 V. Thompson, ir L. R. A.649, 673 
 
 V. Whittaker Iron Co., 41 W. 
 
 Va 5, 758, 766, 768, 770, 771, 
 
 772,773 
 
 Thompson's Appeal, 22 Pa. St 763 
 
 Thorn v. Phares, 35 W. Va 
 
 481, 486, 488, 631 
 
 V. Spouse, 39 W. Va 438 
 
 Thomburg v. Thomburg, Adm'r, 
 
 18 W. Va 140 
 
 Thornton v. Bowen, 37 W. Va 299 
 
 V. Gaar, 87 Va 285 
 
 V. Spotswood, I Wash 5 
 
 Thrall v. Lathrop, 30 Vt 143 
 
 V. Waller, 13 Vt.. . , 456 
 
 Throckmorton v. Prince, 28 Tex.. 485 
 
 ^ V. Throckmorton, 86 Va 666 
 
 Thureatt v. Jones, i Rand 109 
 
 Thirston v. Mink, 33 Md 510 
 
 Tichenor v. Tichenor, 41 N. J. Eq. 186 
 
 Tiffany v. Anderson, 55 Iowa 142 
 
 Tillar v. Cook et al., 77 Va 26, 514 
 
 Tingle v. Fisher, 20 W. Va. . .622, 725 
 
 Tipton V. Tipton, 87 Ky 649 
 
 Tisdale v. Tisdale, 2 Sneed 504 
 
 Tison V. People's S. & L. Ass., 57 
 
 Ala 726 
 
 TitchneU v. Jackson, 26 W. Va . . . 
 
 271, 738, 741 
 
 Titus V. Moss, 40 Me 143 
 
 V. Scantling, 4 Blackf 36 
 
 Tobias v. Ketchum, 32 N. Y 759 
 
 V. Tobias, 51 Ohio St 231 
 
 Todd V. Oviatt, 68 Conn 122 
 
 Tode V. Gross, 127 N. Y 265 
 
 Toledo, etc., Co. v. Penn. Co., 19 
 
 I/. R. A ..-.3.346,387,388 
 
 Tomlinson v. Nickel, 24 W. Va. . . 
 
 128, 129 
 
 Tompkins v. Compton, 93 Ga. . . . 459 
 
 V. Mitchell, 2 Rand 562 
 
 V. Weeks, 26 Cal 191 
 
 Toole V. Toole, 109 N. C 665 
 
 Towles V. Fisher, 67 N. C 149 
 
 Town of Bristol v. Waterworks 
 
 Co., 34 Atl. Rep 536 
 
 Town of Mentz v. Cook, 108 N. 
 Y 144 
 
 PAGE 
 
 Townsend's [Appeal, 51 Am. Rep.. 184 
 Tracey v. Shumate, 22 W. Va 
 
 137, 138,40s 
 
 V. Talmadge, 14 N. Y 276 
 
 Trader v. Jarvis, 23 W. Va 
 
 loi, 276, 415, 416, 420 
 
 Trapnell v. Conkljm, 37 W. Va. . . 
 
 292, 341, 427, 432, 433 
 
 Trapp V. Trapp, 20 Ky. Law 586 
 
 Treman v. Allen, 15 Hun 149 
 
 Trenholm v. Morgan, 28 S. C 314 
 
 Trevellyan's Adm'r v. Sofft et al., 
 
 83 Va 166 
 
 Trevillian v. Guerrant et al., 31 
 
 Gratt 19? 
 
 Tribble v. Anderson, 63 Ga 154 
 
 Tribbette v. Illinois Central R. / 
 
 Co., 19 L. R. A 383 
 
 Trimble v. Herald, 20 W. Va..404, 405 
 Triplett's Ex'rs v. Jameson, 2 
 
 Munf 195 
 
 Troll V. Carter, 15 W. Va.747, 748, 749 
 Trowbridge v. Stone's Adm'r, 42 
 
 W. Va 415, 418 
 
 Truss V. Old, 6 Rand 326 
 
 Trustees v. Blair, 45 W. Va 34 
 
 V. Tufts, 151 Mass 186 
 
 Tuck V. Manning, 150 Mass 73 
 
 Tucker v. Butts, 6 Ga 74 
 
 V. Howard, 28 Mass 347 
 
 V. Sandige, 85 Va 93 
 
 Tuft V. Pickering, 28 W. Va. .283, 287 
 
 Tufts V. Copen, 37 W. Va 154 
 
 Tunstall et al. v. Pollard's Adm'rs, 
 
 II Leigh 242 
 
 Tunstall v. Wothers, 86 Va 
 
 . . ■ 164, 607, 608, 609 
 
 Tupper V. Dart, 30 S. E. Rep 6 
 
 Turk V. Skiles, 45 W. Va 
 
 400, 482, 483 
 
 Turner v. Campbell, 3 Gratt 758 
 
 V. Street, 2 Rand 675 
 
 V. Thorn, 89 Va 107, 110, 17$ 
 
 Turpin v. Chesterfield, etc., Co., 
 
 82 Va 176, 242 
 
 Tuthill V. Morris, 81 N. Y 449 
 
 Tuttle V. Burgett, 53 Ohio St 718 
 
 Tygart's Valley Bank v. Phillipi, 
 
 38 tV. Va 372, 373, 374 
 
 Tyler v. Gardiner, 35 N. Y. , 93 
 
 V. Nelson's Adm'x, 14 Gratt. 29 
 
 V. Savage, 143 U. S 5 
 
 Tyson v. Weber, 31 Ala 732 
 
 u. 
 
 tJlbrichtv. Eufala Water Co., 86 
 
 Ala 383 
 
 Underwood v. Pack, 23 W. Va. . .. 4*36 
 
 Underwood's Ex'r v. Underwood's 
 
 Heirs, 22 W. Va.137, 166, 40S, 676 
 Union Bank v. Hunt, 76 Mo 260 
 
Ixvi 
 
 TABI,K OF CASES. 
 
 PAGE 
 
 Union Mut. Life Ins. Co. v. Slee, 
 
 123 111 142 
 
 Union Pass. R. W. Co. v. Balti- 
 more, 17 Atl. Rep 8 
 
 Union School Tp. v. First Nat. 
 Bank, 102 Ind 146 
 
 Union Water Co. v. Fuming Co., 
 22 Cal 147 
 
 United Lines Tel. Co. v. Safe De- 
 posit & T. Co., 147 U. S 630 
 
 United States v. Ames, 7 Otto. . . . 703 
 
 PAGE 
 
 United States v. Central Pac. R. 
 
 Co., 26 Fed. Rep 417 
 
 United States Baking Co. v. Bach- 
 man, 38 W. Va 65, 66 
 
 United States Blowpipe Co. v. 
 
 Spencer, 40 W. Va 
 
 451. 687, 698, 752 
 
 University v. Tucker, 31 W. Va... 
 
 ; 350. 353. 752 
 
 Upshawv. Gibson, 53 Miss. ..149, 151 
 
 V. 
 
 Vail V. Nelson, 4 Rand 534 
 
 V. Reynolds, 118 N. Y 118 
 
 Vale V. Davenport, 6 Ves 611 
 
 Vanbibber v. Bieme, 6 W. Va. . . . 
 
 159. 277, 278 
 
 Van Blarcom v. Dager, 31 N. J. 
 
 Eq 184 
 
 Van Buckles v. Southwestern Mfg. 
 
 Co., 39 S. W. Rep 726 
 
 Vance v. Evans, 11 W. Va 400 
 
 v. Kirk, 29 W. Va 
 
 645.758,763,764 
 
 Vance Shoe Company v. Haught, 
 
 41 W. Va 287 
 
 Vanderpool v. Keams, 2 E. D. 
 
 Smith (N. YJ 32 
 
 V. Railroad Co., 44 Wis 696 
 
 Vanderwerker v. Glenn, 85 Va. . . 115 
 
 Vandiver v. Pollak, 97 Ala 109 
 
 Van Dom v. Lewis County Court, 
 
 38W. Va 26 
 
 Van Dyne v. Shawe, 39 N. J. Eq.. 731 
 Van Epps v. Van Epps, 6 Barb. . . 655 
 Vangilder v. H^^^^n, 22 W. Va. 
 
 570, 574, 715. 716 
 
 Van Meter v. Van Meter, 3 Gratt. 
 
 608, 631, 632 
 
 Van Vechtan v. Smith, 59 Iowa... 260 
 Van Vleck v. Church, 6 Paige. . . . 773 
 v. Van Vleck, 21 App. Div. . 583 
 
 w 
 
 Wabash R. Co. v. Dykeman, 133 
 
 Ind 227 
 
 Wachter v. Famachon, 62 Wis . . 63 
 Wadd V. Hazelton, 21 L. R. A. . . . 312 
 
 Wade V. Southfield, 102 N. Y 401 
 
 Wadesboro Cotton Mills Co. v. 
 
 Bums, 114 N. C 148 
 
 Wadsworth v. Sherman, 14 Barb. 204 
 
 V. Laurie, 164 111 58 
 
 Wagner v. Coen, 41 W. Va 223 
 
 V. Freschl, 56 N. H 513 
 
 Wagon Co. v. Peterson, 27 W. Va. 75 
 
 Van Winkle v. Blackford, 33 W. 
 
 Va 194, 195 
 
 Varian v. New England Mut. 
 
 Ace. Ass., 156 Mass 72 
 
 Vass v. Bachop, 5 Kan 34 
 
 Vaughn v. Clark, 5 Neb 404 
 
 v. Doe, I Leigh 573 
 
 Vaught v. Cain, 31 W. Va. . . .412, 549 
 Vickers v. Sissons, 10 W. Va..S30, 549 
 Vicksburg & M. R. Co. v. Phil- 
 lips, 64 Miss 59S 
 
 Victor v. Helien, 33 Hun 64 
 
 Vilas v. Page, lois N. Y 232 
 
 Viney v. Bignold, L. R. 20 Q. B. 
 
 Div 39 
 
 Virginia Coal & Iron Co. v. Kelly, 
 
 93 Va 83 
 
 Virginia Land Co. v. Haupt, 90 
 
 Va 102, 418 
 
 Virginia Springs Co. v. Harrison, 
 
 93 Va 546 
 
 Vegelahn v. Gunter, 167 Mass 388 
 
 Venable v. Beauchamp, 3 Dana 
 
 (Ky) 504 
 
 Veneer Co. v. Kurth, 90 Va 485 
 
 Verlander v. Harvey, 36 W. Va. . 
 
 135. JfS* 
 
 Vemor v. Coville, 54 Mich 170 
 
 Verplanck v. Caines, i Johns. Ch. 
 
 219, 226 
 
 Waldron v. Simmons, 28 Ala 8 
 
 Wales V. Browdish, 61 Vt I756 
 
 v. Muscatine, 4 Iowa 73 
 
 Walker v. Boggess, 41 W. Va 
 
 ■ • • ; • 361, 639, 640 
 
 V. Hunt, 2 W. Va 360, 390 
 
 V. Morris, 14 Ga 2 
 
 V. Palmer, 24 Ala ..'..'. 31 
 
 V. Ruffner, 32 W. Va 276 
 
 V. Summers, 9 W. Va 635 
 
 Walker's Adm'r v. Peck, w W 
 
 Va > J^ "• 
 299 
 
TABLE OF CASKS. 
 
 Ixvii 
 
 PAGE 
 
 Wallace v. Loomis, 97 U. S 220 
 
 V. Wallace, 15 W. Va 676, 677 
 
 Wallace's Estate, 59 Pa. St 562 
 
 Wallets V. Fanners' Bank of Va., 
 
 76 Va 471 
 
 Walter v. Hartwig, 106 Ind 86 
 
 Walton V. Devling, 61 111 6 
 
 V. Walton, 34.Kan 661 
 
 Walworth v. Stevenson, 24 La. 
 
 Ann 407 
 
 Wamsley v. Currence, 25 W. Va. . 
 
 258,394 
 
 V. Stalnaker, 24 W. Va 12, 389 
 
 V. Wamsley, 26 W. Va 
 
 35, 47, 48. 166 
 
 Wando Phosphate Co. v. Rosen- 
 berg, 31 S. C 62 
 
 Ward V. Berkshire Life Ins. Co., 
 
 108 Ind 142 
 
 V. Dewey, 16 N. Y 82 
 
 V. Funster, 86 Va 764 
 
 V. Stickney, 12 Allen 572 
 
 V. Swift, 9 Hare 229 
 
 V. Ward, 21 W. Va 566 
 
 V. Ward, 40 W. Va 501 
 
 Ward's Adm'r v. Comett, 91 Va. . 
 
 56s, 570, 574, 575 
 
 Warder v. Trilkeld, 5 Iowa. . . 59 
 
 Ware v. Harwood, 14 Ves. Jr 407 
 
 V. Starkey, 80 Va 154 
 
 Warner v. Kade, 15 Mo. App 64 
 
 V. Syme, 7 W. Va 480, 631 
 
 Warren v. Branch, 15 W. Va 707 
 
 V. Providence, 23 Atl. Rep. . 419 
 
 Wartman v. Swindel, 54 N. J. L. . 447 
 
 Washington v. Opie, 145 U. S 420 
 
 Wash. & A. G. R. Co. v. A. & W. 
 
 R. Co.. 19 Gratt 641 
 
 Wash. Covmty Comm'rs v. W. Co. 
 
 L. C.'s, 26 Atl. Rep 6 
 
 Washington MUl Co. v. Bartlett, 7 
 
 Am. R. R. & Corp. R^ 148 
 
 Washington Sav. Bank v. Thorn- 
 ton, 83 Va 5 
 
 Wass V. Wass, 42 W. Va 581, 582 
 
 Water Supply Co. v. Root, 56 
 
 Iowa 536 
 
 Waterbury v. Waterbuty, 1 Root.. 35 
 Waterman v. Lawrence, 19 Cal. . . 341 
 
 V. Matteson, 4 R. 1 727 
 
 Waterson v. Miller, 42 W. Va 400 
 
 Watkins v. Dupuy, 87 Va 632 
 
 V. Elliott, 28 Gratt 16 
 
 V. Stewart, 78 Va 166, 761 
 
 V. Wortman, 19 W. Va. . .283, 287 
 
 V. Young, 31 Gratt 318 
 
 Watson V. Coast, 35 W. Va 
 
 533. 539. 540 
 
 V. Ferrell, 34 W. Va 354, 355 
 
 PAGE 
 
 Watson V. Hoyt et al., 28 Gratt.. . 
 
 18, 20, 22, 23 
 
 V. Lion Brewing Co., 61 
 
 Mich 83 
 
 V. Nigginton, 28 W. Va 400 
 
 V. Olbrich, i8 Neb 406 
 
 V. Standard Oil Co., 40 Ohio 
 
 St 265, 266 
 
 V. Watson, 45 W. Va 471 
 
 V. Watson, 150 Mass 133 
 
 Watts V. Lellar, 5 C. C. A 541, 542 
 
 Wayland v. Crank, 79 Va 166 
 
 V. Tucker, 4 Gatt 106 
 
 Waynire v. Jetmore, 22 Ohio St. . 594 
 Wa3rt v. Carwithen, 21 W. Va. . . . 
 
 : 708, 714 
 
 Weare Commission Co. v. Druley, 
 
 156 111 58 
 
 Weath V, Weath, 83 Mich 662 
 
 Weatherill v. McClaskey, 28 W. 
 
 Va 76 
 
 Weathersbee v. Farrar, 97 N. C. . . 
 
 148, 149 
 
 Weaver v. Burr, 31 W. Va 531, 540 
 
 V. Nible, 25 Pa. St 504 
 
 Webb V. Alexandria, 33 Gratt 465 
 
 V. Bailey, 41 W. Va 
 
 745, 746.763 
 
 V. Demopolis, 95 Ala 145 
 
 V. Ingham, 29 W. Va 
 
 286, 289, 290, 291, 299, 303 
 
 V. Ridgely, 38 Md 5 
 
 Weber v. Weber, 16 Or 648 
 
 Webster v. Ellsworth, 147 Mass. . 122 
 
 V. Hale, 8 Ves 183 
 
 V. Morris, 60 Wis: 171 
 
 V. Webster, 2 Wash 592 
 
 Weed V. Small, 7 Paige Ch 30 
 
 Weidebush v. Hartenstein, 12 W. 
 
 Va 90 
 
 Weidenbaugh v. Reed, 20 W. Va. 
 
 613, 619, 620 
 
 Weigand v. Alliance Supply Co., 
 
 44W. Va 114 
 
 Weinberg v. Rempe, 15 W. Va. . . 
 
 400,481 
 
 V. Temple, 15 W. Va 609 
 
 Weir's Appeal, 74 Pa. St 358 
 
 Welfley v Shenandoah I. L. M. & 
 
 M. Co., 83 Va 550 
 
 Welch V. Gurley, 2 Hayw 74 
 
 Welles V. Mitchell, i Ired 513 
 
 Wells V. Jackson, 3 Munf 396 
 
 V. Pierce, 27 N. H 2, 8 
 
 Welsh V. Solenberger, 85 Va 
 
 123, 286, 289, 299, 398 
 
 Welton V. Boggs, 43 W. Va 619 
 
 Wenstrow, etc., Co. v. Parnell, 75 
 
 Md 118 
 
 Wentworth v. Shibbles, 89 Me 754 
 
Ixviii 
 
 TABI,B OF CASES. 
 
 PAGE 
 
 Wesley v. Church, lo Pa. St 8 
 
 West V. Jones, 86 Va 269 
 
 West Va. Bldg. Co. v. Sancer, 45 
 
 W. Va 574 
 
 West Va. O. & O. L. Co. v. Vinal, 
 
 14W. Va 526, 548 
 
 Wescott V. Sheppard, 51 N. J. E<l. 98 
 Western I/unatic Asylum v. Mil- 
 ler, 29 W. Va 400 
 
 Western M. & M. Co. v. Peyt. Can. 
 
 C. Co., 8 W Va II, 18, 21, 158 
 
 V. Va. Cannel Coal Co., 10 
 
 W. Va 9, 354 
 
 Western Union Tel. Co. v. Hewett, 
 
 2 Cent 358 
 
 V. Mayor of New York, 38 
 
 Fed. Rep .1 366 
 
 Western Woodenware Ass. v. 
 
 Starkey, 84 Mich 265, 266 
 
 Westfall V. Cottrill, 24 W. Va. . . . 
 
 529. 547 
 
 V. Jones, 23 Barb 729 
 
 Wetzel V. Minn. Trans. ^Co., .12 C. 
 
 C. A 616, 417, 420 
 
 Weyer v. Second Nat. Bank, 57 
 
 Ind 165 
 
 Whale V. Booth, 4 T. Rep 165 
 
 Wharton's Estate, 11 Phila 195 
 
 Wheatley's Heirs v. Calhoun, 12 
 
 Leigh ■ 127 
 
 Wheatley v. Martin's Adm'r, 6 
 
 Iveigh 44i 46, 48 
 
 Wheaton v. Hibbard, 20 Johns 276 
 
 Whedbec v. Stewart, 40 Md 58 
 
 Wheelan v. Wheelan, 3 Cow 93 
 
 Wheeler v. Hawkins, 116 Ind 192 
 
 V. Pullman S. & L. Co., 143 
 
 111 114 
 
 V. Ruthven, 20 N. Y. Sup. 
 
 . Ct 185 
 
 V. Wheeler, 18 Or 651 
 
 Wheeling Gas Co. v. Wheeling, 
 
 5W. Va 43,44,45.46 
 
 White V. Bird, 20 La. An 74 
 
 V. Core, 20 W. Va 538 
 
 V. Hampton, 13 Iowa 483 
 
 V. Horn, Willes 506 
 
 V. Jones, 4 Call 257 
 
 V. Kennedy, 23 W. Va 603 
 
 V. Manufacturing Co., 29 W. 
 
 Va 428,438 
 
 V. Perry, 14 W. Va 
 
 277,278, 288, 289,491 
 
 V. Ross, 160 111 95 
 
 V. Stender, 24 W. Va 390 
 
 V. Waid, islowa 483 
 
 V. White, 16 Gratt 500 
 
 Whitehead v. Shattuck, 138 U. S. 5 
 
 V. Whitehead, 85 Va 765 
 
 Whitehurst's Case, 79 Va 477 
 
 PAGE 
 
 Whitfield V. Whitfield, 89 Ga 654 
 
 Whitman v. Fayette Fuel Gas Co., 
 
 139 Pa 345 
 
 Whitney y. Morrow, 34 Wis 351 
 
 Whitney Arms Co. v. Barlow, 63 
 
 N. Y 147 
 
 Whittaker v. Amett, 8 Ark 5 
 
 V.Brown, 16 Wend 514 
 
 Whittaker et ux. v. Southwestern 
 
 Va. Imp. Co., 34 W. Va 
 
 102, 276, 419 
 
 Whittle V. Bannister, i Wash. .771, 772 
 Whittock V. Johnson, 87 Va. . .488, 490 
 Wick V. Davisson, 42 W. Va 
 
 ••. 297, 766, 772 
 
 Wieland v. Kobick, no 111 151 
 
 Wigglesworthv. Steers,! H. &M. 100 
 Wightman v. Wightman, 4 Johns. 
 
 Ch 494,495 
 
 Wilbur V. Flannery, 60 Vt 73 
 
 Wilcox V. Henderson, 64 Ala 459 
 
 Wilcoxon V. Wilcoxon, 165 111 ... 94 
 
 Wilder v. Wilder, 89 Ala 148 
 
 Wilfong V. Johnson, 41 W. Va..92, 492 
 
 Willie V. Brooks, 45 Miss 151 
 
 Wilkin V. Wilkin, i Johns. Ch 496 
 
 Wilkins v. Gordon, II Leigh.. 636, 641 
 
 V. Woodfin, 5 Munf, 468 
 
 Williamette Co. v. McLeod, 40 
 
 Pac. Rep 700 
 
 Willard v. Strong, 14 Vt 108 
 
 V. Taylor, 8 Wall 542 
 
 Willett V. Overton, 2 Root 5 
 
 William and Mary College v. 
 
 Powell, 12 Gratt 139 
 
 Williams v. Cowden, 13 Mo 745 
 
 V. Gillespie, 30 W. Va 
 
 513, 706, 708 
 
 V. Gross, 43 La. Ann 661 
 
 V. Guile, 117 N. Y. . .312, 313, 314 
 
 V. Mclntyre, 8 Ga 2 
 
 V. Maxwell, 45 Me 34 
 
 V. Maxwell, 45 W. Va 276, 417 
 
 V. Preston, 3 J. J. Marsh. 
 
 (Ey.) 456 
 
 V. Williams, 36 Wis 58S 
 
 V. Williams, 3 Green R 664 
 
 Williamson v. Cline, 40 W. Va. . . 
 
 . . . ^ . . . .428, 429, 430, 438, 439 
 
 V. Hatch, 55 Mmn , 305 
 
 V. Jones, 39 W. Va 353 
 
 V. Jones, 43 W. Va 
 
 ................130, 149, 153, 154 
 
 V. Russell, 18 W. Va 389, 426 
 
 v. Williamson, 6 Paige 183 
 
 Willis V. Ives, 9 Miss 520 
 
 V. Sharp, 115 N. Y 192 
 
 Willworth V. Leonard, 156 Mass.. 204 
 
 Wilmore v. Stefler, 137 Ind 153 
 
 Wilmoth V. Wilmoth, 34 W. Va... 741 
 
TABLE OF CASES. 
 
 Ixix 
 
 PAGE 
 
 Wilson V. Bigger, 7 Watts & S 99 
 
 V. Branch, 77 Va 137 
 
 V. Brookshire, 126 Ind 268 
 
 V. County Court, 26 W. Va... 
 
 372, 373 
 
 V. Davisson, 2 Rob. Rep 127 
 
 V. Getty, 57 Pa. St 36 
 
 V. Maddox, 33 S. E. Rep. . . . 226 
 
 V. Miller, 2 P. & H iii 
 
 V. Perry, 29 W. Va 751, 752 
 
 V. Phoenix Powder Co., 40 
 
 W. Va 358 
 
 V. Shelton, 9 Leigh 159 
 
 V. Town of Phillipi, 39 W. 
 
 Va 369 
 
 V. Welch, 31 N. E. Rep 229 
 
 V. Wilson, 154 Mass 670 
 
 V. Wilson, 45 Cal 589 
 
 V. Wilson, 93 Va 603 
 
 V. Wilson, 10 Ga 582 
 
 Winchell v. Allen, i Conn 74 
 
 Winer v. Winer, 82 Va 496, 497 
 
 Winkler v. Winkler, 18 W. Va.. 
 
 121, 123 
 
 Winn V. Strickland, 34 Fla 84 
 
 Winslow V. Leland, 128 111 604, 605 
 
 Winter v. Gerot, 5 N. J. Eq 168 
 
 Wise V. Taylor, 44 W. Va 616 
 
 Wisely v. Findlay, 4 Rand 496 
 
 Wisiga V. Richmond Machine Co., 
 
 goVa 119 
 
 Wisnerv. Chamberlain, 117 111 683 
 
 Witcher v. Webb, 44 Cal 683 
 
 Witz V. Osbom, 83 Va 301 
 
 Wolcott V. Wolcott, 140 Mass 572 
 
 WoU V. McGugin, 37 W. Va 
 
 305, 306, 308 
 
 Wollf V. Liverpool & L. & G. Ins. 
 
 Co.,5oN. J. L 39 
 
 Womack v. Glasgow, 84 Va 523 
 
 Wood V. Amory, 105 N. Y 271 
 
 V. Dickey, 90 Va 529 
 
 V. Ellis, 85 Va 708 
 
 V. Fleet, 36 N. Y 494 
 
 V. Gamett, 6 Leigh 195 
 
 V. Kirk, 28 N. H 143 
 
 PAGE 
 
 Wood V. Krebbs, 30 Gratt 490 
 
 V. Penoyre, 13 Ves 183 
 
 V. Ring Mfg. Co., 57 Ark 703 
 
 V. Shepperd, 2 P. & H 41 
 
 V. Walker, 92 Va 710 
 
 V. Wood, 2 Paige Ch 581, 669 
 
 Woodcocks V. Hart, 2 Paige 441 
 
 Wooddell V. Bruffey, 22 W. Va. . . 175 
 
 Wooden v. Little, 3 McCord 36 
 
 Woodmanse & Hewitt Mfg. Co. v. 
 
 Williams, 15 CCA 419 
 
 Woodruff V. Woodruff, 44 N. J. 
 
 Eq 530 
 
 Woods V. Fisher, 3 W. Va 646 
 
 V. Krebbs, 33 Gratt 413 
 
 V. Stephenson, 43 W. Va ... 
 
 „, ■■■■■■ 418, 523, 758 
 
 Woodward v. Woodward et al., 36 
 
 S. C 168 
 
 Woody V. insurance Co., 31 Gratt. 451 
 Woodyard v. Polsley et al., 14 W. 
 
 Va 176, 193, 250, 612, 618, 619 
 
 Woolfork V. Sullivan, 23 Ala i66 
 
 Woolwine V. Woodrum, 19W. Va. 762 
 
 Word V. Nicholson, 43 Kan 83, 
 
 V. Word, 90 Ala 220 
 
 Worthington v. Collins, Adm'r, 39 
 
 Kan 80, 100, loi 
 
 V. Staunton. 16 W. Va. . .400, 495 
 
 V. Waring, 157 Mass 387 
 
 Wray v. Gilmore, i Miles (Pa.). 
 
 56, 57 
 
 V. Wray, 32 Ind 203 
 
 Wright V. Cobleigh, 21 N. H 39 
 
 V. Keyla, 104 Ind 150 
 
 V. Prickett, 22 Gratt 531 
 
 V. Strother, 76 Va 
 
 397.398, 495, 509 
 
 V. Wright, I Edw. Ch.. . .581, 582 
 
 Wyatt V. Smith, 25 W. Va 121 
 
 V. Thompson, 10 W. Va. . . . 600 
 
 Wyman's Appeal, 13 N. H 165 
 
 Wynn v. Newman, 75 Va 477, 478 
 
 Wjrtheville Ice & Dairy Co. v. 
 
 Frick Co., 96 Va 413, 524 
 
 Y. 
 
 Yale Gas Stove Co. v. Wilcox, 64 
 
 Conn 450 
 
 Yancey v. Field, 85 Va 
 
 310.3", 314,317 
 
 Yancey v. Lewis, 4 H. & M 11 
 
 V. Manck, 15 Gratt 706, 707 
 
 Yates v. Stewart's Adm'r, 39 W. 
 
 Va 28, 29,403 
 
 V. Town of West Grafton, 33 
 
 W. Va 374, 375, 376, 394 
 
 v. Village of Batavia, 79 111 . 6 
 
 Yerby v. Yerby, 3 Call "i 
 
 Yost V. Mtdlicite's Adm'r, 77 Va. 
 
 22, 23 
 
 V. Porter, 80 Va 409 
 
 Young V. Cooper, 12 Neb 64 
 
 V. McClung, 9 Gratt 403 
 
 V. Miller, 145 Ind 98 
 
 V. Skipwith, 2 Wash 398 
 
 V. Stevens, 48 N. H 206 
 
 v. Young, 89 Va 70, 63a 
 
 V. Young, 45 N. J. Eq 133 
 
 Youngs V. Youngs, 130 111 
 
 652, 670, 671 
 
ixx 
 
 TABLB OF CASKS. 
 
 PAGE 
 ZabUsh V. Cleveland C. & C. R. 
 
 Co.,64U. S 147 
 
 Zane v. Fink, 18 W. Va. .491, 716, 749 
 Zell Guano Co. v. Heatherly, 38 
 
 W. Va 273, 295, 304, 305, 634 
 
 Zell's Appeal, iii Pa. St 107 
 
 Zickefoose v. Kuykendall, 12 W. 
 
 Va 475,477 
 
 PAGE 
 Zimmerman v. Schoenfeldt, 3 
 
 Hun 122 
 
 Zirkle v. McClure, 26 Gratt 340 
 
 V. McCue, 16 Gratt 500 
 
 ZoU & Dunsmore v. Campbell, 3 
 
 W.Va 767 
 
 Zouch V. C. & O. R. Co., 36 
 
 U.S 144 
 
EQUITY PRINCIPLES. 
 
 CHAPTER I. 
 
 EQUITY PRINCIPLES AND JURISDICTION. 
 
 § I. General observations. 
 
 2. Equity — Definition and nature thereof. 
 
 3. General rules of equity jurisdiction. 
 
 4. Classification of equity jurisdiction. 
 
 § I. General observations — 
 
 Equity, as administered in America, had its origin with the 
 people of Kngland.' 
 
 A very eminent author says that some general acquaintance 
 with the origin of equitable jurisdiction, of the sources from 
 which the principles and doctrines of equitable jurisprudence 
 took their rise, and of the causes which led to the establishment 
 of the court of chancery, with its modes of procedure separate 
 and distinct from the common-law tribunals, with their prescribed 
 and rigid forms of action, is absolutely essential to an accurate 
 conception of the true nature and functions of equity as it exists 
 at the present day.' 
 
 • I Pomeroy's Equity Jurisprudence, sees. 1-42; i Story's Equity Jur., sees. 
 38-58; 6 Am. & Eng. Enc. Law, 686; State ex rel. Rhodes v. Saunders, 18 Zi. 
 R. A. 646. Mr. Pomeroy, in his treatise on Equity Jurisprudence, has given 
 a very clear and interesting account of the origin of equity in the English 
 law; and Justice Story in his work on the same subject has written a very 
 excellent statement of the origin and history of this branch of our law, to 
 both of which books the reader, who may desire to familiarize himself with 
 this matter, is referred. 
 
 For a full and interesting account of the rise and progress of the court of 
 chancery, see Bispham's Principles of Equity (5th edition), pp. 1-32. 
 
 ' I Pomeroy's Eq. Jur., sec. x. The author of the article under the title 
 of "Equity" in the Am. & Eng. Enc. Law, at page 687 of Volume 6, says that 
 "in order to a thorough understanding of the word (equity) a study of the 
 history of the rise of the High Court of Equity in England is absolutely 
 essential." (i) 
 
2 EQUITY PRINC1PI.es. 
 
 This is true so far as it applies to law in general, not more so- 
 of equity than of any other branch of jurisprudence, as a knowl- 
 edge of the sources of principles must always carry with it a 
 broader view of their meaning, and, perhaps, a nicer discernment 
 of the cases wherein they may be applied. But inasmuch as the 
 rules of chancery jurisdiction have become fixed and certain, 
 and, in many instances, their rise and history are obscure and 
 unknown, we do not attach a great deal of importance to these 
 matters beyond the practical scope of this part of the law as it is 
 administered to-day. It is with this alone that the student and 
 lawyer are now called upon to deal. We may here remark, how- 
 ever, that the court of chancery was in full operation as early as 
 the reign of Edward III, affording relief in those cases where the 
 courts of law could not or would not act, the power of the court 
 being exercised according to "conscience, good faith and hon- 
 esty," the chancellor being governed by no determinate princi- 
 ples and observing no rules save his own conceptions of justice in- 
 each case that came before him. But in the time of Edward IV, 
 we find that the principles of equity jurisprudence were ascer- 
 tained and established upon the basis and with the limitations 
 which have continued to the present time.^ So the duties and 
 powers of this tribunal were well defined and settled long before 
 our ancestry migrated to this continent; and when they came 
 here they brought with them and transplanted on these shores 
 the equity system of their fathers, making it as much a part of 
 their jurisprudence as the sturdy doctrines of the common law.* 
 
 During the comparatively long period elapsing since the early 
 settlements of this country, the rules of this branch of our legal 
 system have been expanding by judicial interpretation and legis- 
 lative authority, until the scope of equity jurisdiction has become 
 so wide, and the objects of its application so diversified and. 
 numerous, that long study and practice are essential to anything" 
 like a familiar and well-grounded knowledge of its doctrines. 
 In this view of the subject, our researches will be directed to a 
 practical exemplification of some of the common principles of 
 
 » 1 Pomeroy's Eq. Jur., sees. 34-39; i Story's Eq. Jnr., sees. 51, 52. 
 
 ' Rhodes v. Saunders, 18 I,. R. A. 646; Williams v. Melntyre, 8 Ga. 34; 
 Walker v. Morris, 14 Ga. 323; Rutherford v. Jones, Idem, 521; Wells v> 
 Pieree, 27 N. H. 503; Copp v. Henniker, 55 N. H. 179; s. c. 20 Am. Rep.. 
 194; Penhallow v. Kimball, 61 N. H. 596, 598, 599; Carroll v. MeCuUough, 
 63 N. H. 95, 98; Eckstein v. Downing, 64 N. H. 248, 259. 
 
EQUITY PRINCIPIrES AND JURISDICTION. 3 
 
 equity and the methods whicli obtain in their usual application, 
 pursuing that course which is deemed best adapted to such end. 
 
 § 2. Equity — definition and nature thereof — 
 
 Equity has been variously defined by difEerent writers and 
 judges. Among these numerous definitions are the following: 
 "A branch of remedial justice, by and through which reUef is 
 afforded to suitors in the courts of equity;"^ "In one of its 
 technical meanings, equity is a body of jurisprudence, or field of 
 jurisdiction, differing in its origin, theory and methods from the 
 common law;" ^ "Equality is equity." ^ But to attempt to define 
 the powers and jurisdiction of a court of equity would only re- 
 sult in embarrasment and confusion, and all that can be done 
 along this line is to lay down certain general rules, which, in 
 most instances, may determine the right to invoke the aid of this 
 tribunal.* 
 
 In the case of Thomas v. Musical Protective Union,' Ruger, 
 Ch. J., says: "I<egal actions are designed to afford redress for 
 injuries already inflicted and rights of persons or property actu- 
 ally invaded. Equitable actions, however, are not only remedi- 
 able in their nature, but may also be brought for the purpose of 
 
 ■ I Bouv. I<aw. Die, tit. "Equity," p. 530. 
 = Black's Law Die, tit. "Equity," p. 428. 
 3 Speer v. Speer, i McCord, 240. 
 
 * "Every just order or rule known to equity courts was bom of some 
 emergency, to meet some new conditions, and was, therefore, in its time, 
 without a precedent. If based on sound principles, and beneficent results 
 foUow their enforcement, affording necessary relief to the one party without 
 imposing illegal burdens on the other, new remedies and unprecedented 
 orders are not unwelcome aids to the chancellor to meet the constantly vary- 
 ing demands for equitable relief. 
 
 Mr. Justice Brewer, sitting in the circuit court for Nebraska, said: 'I be- 
 lieve most thoroughly that the powers of a court of equity are as vast, and 
 its processes and procedure as elastic, as all the changing emergencies of in- 
 creasingly complex business relations and the protection of rights can de- 
 mand.' 
 
 Mr. Justice Blatchford, speaking for the supreme court, in Joy v. St. 
 1/Ouis, in 138 U. S. i, 34 L. ed. 843, said: 'It is one of the most useful func- 
 tions of a court of equity the-t its methods of procedure are capable of being 
 made such as to accommodate themselves to the development of the in- 
 terests of the public in the progress of trade and traffic by new methods of 
 intercom-se and transportation.'" Toledo, A. A. & N. M. Co. v. Pennsyl- 
 vania Co. (U. S. C. C. Northern Dist. Ohio) 19 L. R. A. 395, 399. 
 5 121 N. Y. 45; s. c. 8 ly. R. A. 175, 178. 
 
4 EQUITY PRINCIPLES. 
 
 restraining contemplated wrongs or injuries and the prevention 
 of the threatened illegal action which may be the occasion of 
 serious injury to others." 
 
 In Sheridan v. Colvin/ the court said: "It is dementary law 
 that the subject of the jurisdiction of the court of, chancery is 
 civil property. The court is conversant only with the questions of 
 property and the maintenance of civil rights. Injury to property, 
 whether actual or prospective, is the foundation on which the 
 jurisdiction rests. The court has no jurisdiction in matters 
 merely criminal or merely immoral, which do not affect any 
 right of property. Nor do matters of a political character come 
 within the jurisdiction of a court of chancery. Nor has the 
 court of chancery jurisdiction to interfere with the public duties 
 of any department of the government, except under special cir- 
 cumstances, and where necessary for the protection of the rights 
 of property." ^ 
 
 § 3. General rules of equity jurisdiction — 
 
 As we have just seen from the next preceding section, the 
 objects over which equity will assert its jurisdiction, must be pro- 
 prietary in character. But inasmuch as the courts of law are 
 always open for the redress of wrongs, it is not every infringe- 
 ment of the rights of property, or threatened injury thereto, that 
 a court of equity will lend its aid to remedy or extend its arm to 
 restrain. In nearly every instance it must move in the exercise 
 of its power with reference to some of its cardinal rules, or in 
 conformity to well-recognized precedent or in the observance of 
 statutory enactment. 
 
 The principle upon which this court anciently based its claim 
 to jurisdiction was the want of any adequate remedy at common 
 law.' 
 
 At the same time great latitude was permitted in the matter of 
 determining what was and what was not remediable by courts of 
 law. And it is now laid down by all the courts that equity will 
 
 ' 78 111. 237. 
 
 = In this connection we here refer to the valuable note to the case of Chap- 
 pell V. Stewart, 37 L. R. A. 783, which is an elaborate one bearing on the 
 doctrine stated in the text. 
 
 3 I Pomeroy's Eq. Jur., sec. 50. 
 
EQUITY PRINCIPLES AND JURISDICTION. 5 
 
 not grant relief where the party has a plain, adequate and com- 
 plete remedy at law.^ 
 
 In the federal courts this is the absolute criterion by which 
 equity determines the question of its jurisdiction. ^ And aver- 
 ments of equity jurisdiction in the bill will not give jurisdiction, 
 if the real cause of action is one for which there is an adequate 
 remedy at law.? 
 
 However, under this rule, the relief afforded by the courts of 
 law must be adequate, and as complete as that obtainable in a 
 court of equity.* But the rule that equity will not take cogni- 
 zance of a case where the remedy at law is adequate and com- 
 plete is far from being universal. There are a large number of 
 instances wherein the jurisdiction of law and equity is concurrent. 
 
 ' Willet V. Overton, 2 Root, 338; s. c. 1 Am. Dec. 72; Andrews v. Sullivan, 
 2 GiUman, 327; s. c. 43 Am. Dec. 53; Doggett v. Hart, 5 Fla. 215; s. c. 58 
 Am. Dec. 464; Garvin v. Squires, 9 Ark. 533; s. c. 50 Am. Dec. 224; Red- 
 mond V. Dickerson, i Stockton, Ch. 507; s. c. 59 Am. Dec. 418; Lexington 
 Life Insurance Co. v. Page, 17 B. Mon. 412; s. c. 66 Am. Dec. 165; O'Neal v. 
 Virginia, etc., Bridge Co., 18 Md. i; s. c. 79 Am. Dec. 669; Sherman v. 
 Clark, 4 Nev. 138; s. c. 97 Am. Dec. 516; Armstrong v. Cheshire, 2 Deve- 
 reaux Eq. 234; s. c. 24 Am. Dec. 273; Gore v. Kramer, 117 111. 176; s. c. 7 N. 
 E. Rep. 504; Buzard v. Houston Bank, 30 U. S. L. ed. 451; Thomas v. 
 Musical Protective Union, 121 N. Y. 45; s. c. 8 L. R. A. 175; Alley v. Chase, 
 83 Me. 537; s. c. 22 Atl. Rep. 393; Haines v. Hall, 17 Or. 165; s. c. 3 L. R. 
 A. 609; Thornton v. Spottswood, i Wash. (Va.) 142; Michael v. Workman, 
 5 W. Va. 393; I Bart. Ch. Prac. 13; Green v. Spaulding, 76 Va. 411; AUe- 
 man v. Knight, 19 W. Va. 201; Jones v. Fox, 20 W. Va. 370; Moore v. Steel- 
 man, 80 Va. 331; Miller v. Miller, 25 W. Va. 495; Washington City Sav. 
 Bank v. Thornton, 83 Va. 157; s. c. 2 S. E. Rep. 193. 
 
 = Buzard v. Houston, 119 U. S. 351; Hipp v. Babin, 60 U. S., 19 Howard, 
 271, 278; Scott V. Neely, 140 U. S. 106, 35 L. ed. 358; Whitehead v. Shat- 
 tuck, 138 U. S. 146, 34 L. ed. 873; Smyth v. New Orleans Canal & Bkg. Co., 
 141 U. S. 656, 35 L. ed. 891; Cecil Nat. Bank v. Thurber, 8 C. C. A. 365; 
 Quincy v. Steel, 120 U. S. 241. 
 3 Thompson v. Whittaker Iron Co. 41 W. Va. 574; 23 S. E. Rep. 795. 
 ■♦ Tyler v. Savage, 143 U. S. 79, 36 L. ed. 82; City of Hartford v. Chipman, 
 21 Conn. 488; Hollingshead v. McKenzie, 8 Ga. 457; Witter v. Amet, 8 
 Ark. 57; McDaniels v. Lee, 37 Mo. 254; Morris v. Thomas, 17 111. 112; 
 Webb V. Ridgely, 38 Md. 364; Hodges v. Kowing, 58 Conn. 12; s. c. 7 L. 
 R. A. 87; Brush Electric Co.'s Appeal, 114 Pa. St. 574; s. c. 7 Atl. Rep. 794; 
 Denny v. Denny, 113 Ind. 22; s. c. 14 N. E. Rep. 593; Kilbourn v. Sunder- 
 land, 130 U. S. 505, 32 L. ed. 1005; Nease v. Aetna Insurance Co. 32 W. Va. 
 283; s. c. 9 S. E. Rep. 233; Darrah v. Eoyce, 62 Mich. 480; s. c. 29 N. W. Rep. 
 102; Gormley v. Clark, 134 U. S. 338, 33 L. Ed. 909; s. c. 10 Sup. Ct. 
 Rep. 554. 
 
6 BQUITY PRINCIPI,ES. 
 
 It must, in the very nature of equity relief, be difl&cult to say 
 by what maxims and principles this rule is always directed and 
 governed.^ It is not, perhaps, susceptible of definite limitation. 
 We may, however, state that in subordination to this rule, it 
 never takes cognizance of matters purely criminal;* or merely of 
 a political nature,' or in cases touching conflictive claims to of- 
 fice;^ or in matters pertaining to popular elections, such as certi- 
 fying the returns therefrom and declaring the result thereof;^ 
 or in matters involving the discharge of a plain duty by a public 
 officer;* or of a simple demand for unliquidated damages for a 
 tort;^ or a question of damages pure and simple', except in the 
 very rare instances hereinafter shown.' 
 
 In cases of the kind here designated, the extent of the rule is 
 well marked and its application clear and well defined. But 
 when we recede from this demarkation and ^approach that line 
 which divides the concurrent jurisdiction of law and equity from 
 that which is exclusively confided to courts of law, because of 
 the application of the rule under consideration, it becomes ex- 
 
 ' For a discussion of the principles governing in matters of concurrent 
 and exclusive jurisdiction in equity, vide, i Pomeroy's Eq. Jur. (2d ed. ) sees. 
 137-140. 
 
 ' Moses V. Mayor, etc., 52 Ala. 198; Gault v. Wallis, 53 Ga. 675; Sheridan 
 V. Colvin, 78 ni. 237; Yates v. Village of Batavia, 79 HI. 500; Stuart v. 
 Supervisors of La Salle, 83 111. 341; State v. Uhrig, 14 Mo. App. 413; Ex 
 Parte Lawyer, 124 U. S. 200, 31 L. Ed. 402; Pope v. Mayor of Savannah, 74 
 Ga. 365. 
 
 3 Hardesty v. Taft, 23 Md. 512; Phelps v. Watertown, 61 Barb. (N. Y.) 
 121; Fletcher v. Tuttle, 151 111. 41; s. c. 25 L. R. A. 143; 37 N. E. Rep. 683; 
 State v. Cunningham, 83 Wis. 90; s. c. 53 N. W. Rep. 35. 
 
 *Hartt v. Harvey, 32 Barb. (N. Y.) 55; Stone v. Wetmore, 42 Ga. 601; De- 
 troit V. Board of Public Works, 23 Mich. 546; Delehanty v. Warner, 75 111. 
 185; Washington County Comrs. v. Washington County School Comrs., 00 
 Md. 00; s. c. 26 Atl. Rep. 115; Kirkpatrick v. Smith, 77 Va. 347; Tupper v. 
 Dart, 00 Ga. 00, 30 S. E. 624. 
 
 s Alderson v. Commissioners, 32 W. Va. 640; s. c. 9 S. E. Rep. 868; Flem- 
 ing V. Guthrie, 32 W. Va. i; s. c. 9 S. E. Rep. 23. 
 
 ^ Fleming v. Guthrie, supra; Walton v. Devling, 61 111. 201; Moulton v. 
 Reid, 54 Ala. 320; Smith v. Myers, 109 Ind. 1; s. c. 9 N. E. Rep. 692 
 
 ^ Brown v. Wabash Ry. Co., 96 111. 279. 
 
 8 Stanford v. Lyon, 37 N. J. Eq. 94; Osborne v. O'Reilly, 42 N. J. Eq. 467; 
 s. c. 9 Atl. Rep. 209; Atlanta and West Point R. R. Co. v. Speer, 32 Ga. 550; 
 s. c. 79 Am. Dec. 305; Crislip, Guardian, v. Cain, 19 W. Va. 439; i Pomeroy's 
 Eq. Jur. (2d ed.) ? 237. 
 
 ' Post, U 36, 430«- 
 
EQUITY PRINCIPLES AND JURISDICTION. 7 
 
 ceedingly difficult to point out, in appropriate terms, this line of 
 separation, and we are here involved in great confusion and per- 
 plexity. This line is thus drawn by Mr. Story: "The concur- 
 rent jurisdiction of courts of equity may be truly said to embrace, 
 if not all, at least a very large portion of the original jurisdic- 
 tion, inherent in the court from its very nature, or first conferred 
 upon it upon the dissolution or partition of the powers of the 
 Great Council, or Aula Regis of the King." ^ 
 
 In the case of Meek v. Spracher,^ Richardson, J., employs this 
 language in the limitation of this rule: "It is true that the ab- 
 sence of an adequate remedy at law is generally a sufficient 
 ground of equitable jurisdiction; but it is equally true that the 
 existence of a remedy at law cannot deprive courts of equity of 
 jurisdiction in a matter that comes within the scope of their ele- 
 mentary jtirisdiction." 
 
 On this point, Snyder, J., in Nease v. Aetna Ins. Co.,' says: 
 "The general rule, that equity has no jurisdiction where there is 
 a plain and adequate remedy at law, does not of itself afford a 
 sufficient test of the jurisdiction; for it is also true that a doubt- 
 ful or partial remedy at law does not exclude an injured "party 
 from relief in equity, and hence a just discrimination becomes 
 frequently a subject of doubt and perplexity The application 
 of the principle to a particular case must depend altogether upon 
 the character of the case as disclosed by the pleadings. It is safe 
 to say, however, that where it is doubtful whether or not there is 
 an adequate and complete remedy at law, a court of equity will 
 take jurisdiction." It seems to us that the rule, as thus laid 
 down by the learned judge, is as clear and accurate a statement 
 of the principle of law that is to govern in the application of 
 this rule as can be made. 
 
 In all those cases where the rights to be enforced are purely 
 equitable, whether arising from positive law or from the long-set- 
 tled practice and rules of the court of chancery, and as contra- 
 distinguished from those denominated legal, equity alone has 
 jurisdiction.* 
 
 These cases may arise either from the nature of the right itself 
 or from the character of the relief sought. Thus, if one would 
 
 ' I Story's Eq. Jur. (4th ed.), ? 76. 
 " 87 Va. 162; 12 S. E. Rep. 397, 399- 
 3 32 W. Va. 283; s. c. 9 S. E. Rep. 234. 
 ■• I Pomeroy's Eq. Jur., §§ 137, 138. 
 
8 EQUITY PRINCIPLES. 
 
 enforce a mechanics' lien, lie can do so only in a court of equity, 
 because tlie right here asserted is purely a statutory, equitable 
 right; and if he desires the specific enforcement of a contract in 
 relation to real estate, he may do so, because at law he can only 
 recover damages for its breach, so that the right to sue in equity 
 in the latter case is made to depend upon the character of the 
 relief sought, and not upon the character of the contract which 
 has become the foundation of the plaintiff's suit. 
 
 § 4. Classification of equity jurisdiction — 
 
 Different writers make different classifications of the jurisdic- 
 tion of equity, some of which are quite elaborate; but it seems 
 to us that the most natural and convenient is that which divides 
 it into concurrent, exclusive and auxiliary} 
 
 There is, too, a jurisdiction arising from statute which might 
 not inaptly be called statutory, but we have not thought it neces' 
 sarj' to arrange the cases of this ch^aracter under a distinct head 
 or class, as a proper analysis will refer them to the classification 
 of the three sorts above mentioned. Where a statute confers 
 jurisdiction at law which before existed in equity, the former is 
 not exclusive, unless the statute contains prohibitory or re- 
 strictive words." 
 
 It hardly needs authority to define, in general terms, these 
 three kinds of jurisdiction. It is sufficient to state that the con- 
 current jurisdiction of equity jurisprudence embraces all those 
 cases in which the plaintiff may pursue his remedy either at law 
 or in equity at his own option. Mr. Story defines it as that 
 which "extends to all cases of legal rights where, under the cir- 
 cumstances, there is not a plain, adequate and complete remedy 
 atlaw."^ 
 
 ' I gtory's Eq. Jur., \ 75; i Pomeroy's Eq. Jur., I 121. 
 
 = Waldron v. Simmons, 28 Ala. 629; Bright v. Newland, 4 Sneed (Tenn.), 
 440; King V. Payan, 18 Ark. 583; People v. Houghtaling, 7 Cal. 348; Grain 
 V. Barnes, I Md. Ch. 151; Payne v. Ballard, 23 Miss. 88; Mitchell v. Oley, 
 23 Miss. 236; Clark v. Henry, 9 Mo. 339; Dobyns v. McGovem, 15 Mo. 662; 
 Wells V. Herce, 27 N. H. (7 Fost.) 503; Irick v. Black, 3 N. J. Eq. (2 Green). 
 189; Biddle v. Moore, 3 Pa. St. 161; Wesley Church v. Moore, 10 Pa. St. 
 273; Case V. Fishback, 10 B. Mon. (Ky.) 40; Sweeny v. Williams, 36 N. J. 
 Eq. 627; Smith V. Taylor, 11 X/eo. (Tenn) 738;.Corothers et al. v. Board of 
 Education, etc., 16 W. Va. 527; Union Passenger R. W. Co. v. Baltimore, 17 
 Md. 238; s. c. 17 Atl. Rep. 933. 
 
 3 1 Story's Eq. Jur., \ 76. 
 
EQUITY PRINCIPLES AND JURISDICTION. 9 
 
 A familiar illustration of this definition will be found in the 
 use of the writ of injunction to restrain a trespass where the in- 
 jury threatened will be irreparable.^ And a further and perhaps 
 a clearer illustration of this definition of Mr. Story's is that af- 
 forded by suits so often brought upon lost instruments.^ 
 
 "We have made in the main, though not entirely, the exclusive 
 jurisdiction to embrace all those cases wherein the right asserted 
 is purely equitable, without regard to the nature of the remedy 
 sought to enforce the right which forms the ground of action.' 
 The instances of this class of the court's jurisdiction have been 
 greatly increased by statute, which is fully considered in some of 
 the subsequent chapters of this work.* 
 
 The auxihary jurisdiction of a court of equity is that which is 
 used in aid of some other jurisdiction.^ Among the cases in 
 which this branch of the court's jurisdiction is applied and illus- 
 trative thereof, is that of a bill of discovery.* 
 
 ' W. M. & M. Co. V. Va. C. C. Co., 10 W. Va. 250. 
 
 ' Mitchell, Sheriff, v. Chancellor et al., 14 W. Va. 22. 
 
 3 I Pomeroy's Eq. Jur. (2d ed.), ? 137. According to Mr. Pomeroy, the 
 exclusive jurisdiction includes also those cases wherein the remedy is given 
 by courts of equity alone without regard to the substantive right which 
 forms the basis of the action. In this manner, this distinguished author has 
 enlarged the subject of the exclusive, and lessened the concurrent, jurisdic- 
 tion of courts of equity. 1 Pomeroy's Eq. Jur. (2d ed.). | 138. 
 
 * Post, chaps. 7, II, 16, 19, 33, 34, 41, 44, 45 and 48. 
 
 5 I Pomeroy's Eq. Jur., ? 142; 2 Story's Eq. Jur., \ 1480. 
 
 ' 2 Story's Eq. Jur., \ 1481 et seq.; Russell v. Dickershied, 24 W. Va. 61. 
 See post, chaps. 51-54- 
 
lO EQUITY PRINCIPLES. 
 
 CHAPTER II. 
 
 CONCURRENT JURISDICTION. 
 
 ABATEMENT. 
 
 ? 5. Cases in which abatement may be proper. 
 
 6. When a sale by the acre, and when in gross. 
 
 7. Fraud of the vendor affecting the rights of the vendee — ^abatement in 
 
 such case. 
 
 8. Deficiency in quantity of land mentioned in the deed arising from 
 
 mistake. 
 
 9. Unliquidated damages not the subject of abatement. 
 
 10. Cases wherein all the purchase-money has beeii paid. 
 
 11. Evidence of the vendor's representations as to the quantity of land 
 
 sold. 
 
 12. Extent of deficiency in quantity of land sold, to authorize an abate- 
 
 ment. 
 
 13. Payment for excess of land beyond quantity called for in the contract 
 
 or deed — when may be required by vendor. 
 
 14. Rule for determining the amount of abatement, or the compensation 
 
 for the excess in the quantity of land sold. 
 
 § 5. Cases in >vhich abatement may be proper — 
 
 The concurrent is by far the most comprehensive branch of equity 
 jurisdiction, embracing, as it does, the three great heads of Acci- 
 dent, Fraud and Mistake, with all of their diversified forms and 
 phases, as well also as Matters of Account and its incidents, Ad- 
 ministration, Confusion of Boundaries, Dower, Partition, Partner- 
 ship, the Rights of Sureties, and many other subjects hereinafter 
 to be mentioned and considered. 
 
 With a view to practical convenience, and to best bring out in 
 a ready and orderly manner the subjects and topics with which 
 courts of equity are conversant, we have thought proper to 
 arrange these matters alphabetically under leading subjects and 
 subdivisions, and thus discuss the various branches of equity 
 jurisdiction in more or less exhaustive detail as to the principles^ 
 and maxims which govern its exercise. We are not aware that 
 this method of treating the subject has ever hitherto been em- 
 ployed; but it has suggested itself as being a feasible and useful 
 plan of developing the numerous grounds upon which application 
 
ABATEMENT. 1 1 
 
 to a court of equity may be predicated; and pursuing this order, 
 we shall begin with the matter of Abatement, the most frequent 
 occurrence of which is where there has been a sale of property, 
 generally real estate, with covenants of warranty, express or 
 implied, under such circumstances as to render it unjust and in- 
 equitable that the entire amount of purchase-money agreed upon 
 between the parties should be paid by the vendee; and a proper 
 deduction is made therefrom, as the circumstances of the case 
 may indicate or require, in order to effect the real intentipn of 
 the parties as to the sum to be paid as the consideration of the 
 purchase.^ 
 
 TTie cases wherein equity vuill decree an abatement are. First, 
 where there has been a sale of land by the acre, and it turns out 
 that there is a less number of acres than that called for in the 
 deed or other contract of sale;* Second, where the sale has been 
 made under representations by the vendor that the boundary set 
 forth in the deed or other contract contains a certain number of 
 acres, the vendee relsdng upon such representations, and it turns 
 out that there is materially less than the quantity called for in 
 the deed or contract, and this, too, whether the contract on its 
 face shows a sale in gross or by the axref Third, where there has 
 been a sale of real estate by metes and bounds, and it appears 
 that the vendor has no title to a part of the land lying within the 
 specified boundaries, or the title thereto is defective;* Fourth, 
 
 ■ Stockton V. Union Oil & Coal Co., 4 W. Va. 273; Reed v. Patterson, 7 W. 
 Va. 263; Crislip V. Cain, 19 W. Va. 438; McCoy v. Bassett, 26 W. Va. 570; 
 Kelly v. Riley, 22 W. Va. 247, Butcher v. Peterson, 26 W. Va. 447; Smith v. 
 Parsons, 33 W. Va. 644; s. c. 11 S. E. Rep. 68; Board v. Wilson, 34 W. Va. 
 609; s. c. 12 S. E. Rep. 778; Morgan's Adm'r v. Blast, 34 W. Va. 332; s. c. 12 
 S. E. Rep. 710; Heavener v. Morgan, 30 W. Va. 335; s. c. 4 S. E. Rep. 406; 
 Keyton v. Bradfords, 5 Leigh, 39; Abemathy v. Phillips, 82 Va. 769; s. c. 
 I S. E. Rep. 113; Western Mining & Manf'g Co. v. Peytona Cannel Coal Co., 
 8 W. Va. 408. 
 
 ' Reed v. Patterson, 7 W. Va. 263; Board v. Wilson, 34 W. Va. 609; s. c. 12 
 S. E. Rep. 778; Koger v. Kane's Adm'r, 5 Leigh, 606. 
 
 3 Crislip, Guardian, v. Cain, 19 W. Va. 438; Kelly v. Riley, 22 W. Va. 247; 
 Butcher v. Peterson, 26 W. Va. 447; Anderson v. Snyder, 21 W. Va. 632; 
 Depue V. Sargeant, 21 W. Va. 326, 327. 
 
 * Stockton V. Union Oil & Coal Co., 4 W. Va. 273; Smith v. Parsons, 33 
 W. Va. 644; s. c. II S. E. Rep. 68; Morgan's Adm'r v. Brast, 34 W. Va. 
 332; s. c. 12 S. E. Rep. 710; Heavener v. Morgan, 30 W. Va. 335; s. c. 
 4 S. E. Rep. 406; Yancey v. Lewis, 4 H. & M. 390; Grantland v. Wright, 5 
 
12 EQUITY PRINCIPLES. 
 
 where there has been a sale of real estate and the vendee is sub- 
 sequently compelled to discharge an incumbrance thereon — as 
 that created by reason of a vendor's lien or deed of trust, in 
 order to clear up the title to the entire tract; ^ Fifth, where 
 there has been a sale of real estate under such circumstances and 
 conduct of fraud or deceit on the part of the vendor, as to 
 make it unconscionable to require the vendee to pay the full 
 amount of purchase-money specified in the contract, where there 
 is a [deficiency in the acreage or quantity, although the sale was 
 one apparently in gross; ^ Sixth, where there has been a sale of 
 personal property with a warranty as to the quality thereof, and 
 there has been a breach of such warranty, and the vendor has, 
 upon any proper ground of jurisdiction, entered suit in equity to 
 collect the purchase-money.' 
 
 In the case of Pratt v. Bowman,* Judge Dent makes the fol- 
 lowing classification of the sales of real estate with reference to 
 the law of abatement: (i) Sales by the acre; (2) sales in gross 
 or by the boundary. And he thus subdivides sales by the acre: 
 (i) Those so expressed in the conveyance, and (2) those by the 
 acre according to the positive understanding and agreement of the 
 parties, but not so expressed in the conveyance. He states that 
 in all cases of sales by the acre a court of equity will grant relief in 
 cases either where there is an excess or deficiency clearly appearing. 
 And he also thus sub-classifies sales in gross: (i) Those strictly 
 and essentially by the tract, without reference in the negotiation 
 or in the consideration to any designated or estimated quantity of 
 land; (2) those of the like kind in which, though a supposed 
 quantity by estimation is mentioned or referred to in the con- 
 tract, the reference was made only for the purpose of description, 
 and under such circumstances or in such manner as to show that 
 the parties intended to risk the contingency of quantity, however 
 much it might exceed or fall short of that which is mentioned in 
 the contract; and (3) those which it is evident from extraneous 
 circumstances, such as locality, value, price, time, the conduct, 
 
 Munf. 295; Ralston v. Miller, 3 Rand. 44; Clarke v. Hardgrove, 7 Gratt. 399; 
 Kinport v. Rawson, 29 W. Va. 487; s. c. 2 S. E. Rep. 85; Keyton's Adm'r v. 
 Brawford's Ex'rs, 5 Leigh, 39; Wamsley v. Stalnaker, 24 W. Va. 214. 
 
 ' Massie's Adm'r v. Heiskell's Trustee, 80 Va. 787. 
 
 ' Anthony v. Oldacre, 4 Call, 409. 
 
 3 Baker v. Oil Tract Company, 7 W. Va. 454. 
 
 * 37 W. Va. 715; 17 S. E. Rep. 210. 
 
ABATEMENT. I J 
 
 conversation and character of the parties, that they did not or 
 ought not to contemplate or intend to risk more than the usual 
 rate of excess or deficiency in like cases, or than such as might 
 reasonably be calculated on as within the range of ordinary con- 
 tingency. In contracts belonging to the first two subdivisions of 
 sales in gross, relief wiU not be granted in the absence of fraud; 
 but, in those of the third, an unreasonable surplus or deficiency 
 will entitle the party injured to relief, unless he has, by his con- 
 duct, forfeited or waived his right thereto. 
 
 It must be remembered that in all these different classes of 
 cases wherein equity lends its aid, to make a deduction from the 
 amount of the purchase-money specified to be paid to the vendor 
 or his assignee, that the right to do so can generally only be 
 predicated upon an express or implied warranty on the part of 
 the vendor. When there is no warranty, as a rule, there can be 
 no relief. In the case of Crislip, Guardian, v. Cain,^ Green, 
 Judge, says: "No special form of words is necessary to create a 
 warranty. A representation made by a vendor either at the time 
 when the bargain is concluded, or, if it be a verbal sale, during 
 the course of dealings which led to the bargain, will or will not 
 be held to be a warranty according to the intention of the parties, 
 to be gathered, with an exception presently stated in case of am- 
 biguity, from the written contract, if the terms of the sale be re- 
 duced to writing, and, if not in imting, from the conversation of 
 the parties at the time of or preceding the contract and during 
 the negotiation and from aU the surrounding circumstances. To 
 make such representation a warranty it is not sufficient that it 
 appears to have been an inducement to the buyer, but it must 
 appear that it entered into the contract of sale, when it was con- 
 cluded, and was intended by the vendor as a warranty and so un- 
 derstood by the vendee. If this does not appear, it will not be 
 held to be a warranty, and the vendor may, or may not, be re- 
 sponsible for such representation, if it turns out to be false." 
 
 "If there be a warranty, either express or implied, the vendor 
 is always responsible on his contract if the warranty be broken. 
 But if the untrue representation be not an implied warranty, 
 the responsibility therefor on the vendor will depend on a va- 
 riety of circumstances, as we have seen. As, for instance, if 
 the vendor has stated as a fact that which he knew to be false, 
 
 ' 19 W. Va., at page 749. 
 
14 BQUITY PRINCIPtBS. 
 
 or that which he did not believe to be true, or has stated as 
 within his own personal knowledge that which was not (though 
 he believed it to be) true, and this statement was made to induce 
 the purchaser to buy at the price, which he agreed to give, and 
 the buyer was in fact induced by such representation to make the 
 purchase on the terms he did, the seller would be responsible to 
 him for whatever loss he might thereby sustain, though there 
 was no warranty, express or implied; but he would not be re- 
 sponsible if any of these essential requisites to his responsibility 
 did not exist." ' 
 
 When the question is whether any representation made by a 
 vendor at the time of sale in a verbal contract, or put on the face 
 of the contract if in writing, is a warranty of what is stated, or 
 is only a representation, is one difficult to determine, and depends 
 simply upon whether the parties intended it to be a part of the 
 contract, and as such a warranty.'' The true rule here is laid 
 down by Judge Green as follows: 
 
 "In the absence of all evidence, the statement of the quantity 
 of land by the vendor, whether in a contract executed or execu- 
 tory, ought to render him prima facie responsible to the vendee 
 in case of a deficiency, because it is a positive assertion of a fact 
 as within the knowledge of the vendor, which was not true, and 
 prima fade, in the absence of evidence, this fact ought to be as- 
 sumed to have influenced the price paid by the vendee.' 
 
 § 6. When a sale by the acre, and when in gross — 
 
 Whether a purchase of a tract of land was by the acre or in 
 gross, must be determined by the intention of the parties to the 
 contract, and for the purpose of ascertaining this intention, the 
 court, where the contract is ambiguous on its face, will examine 
 into the situation and surroundings of the parties thereto, and 
 their conduct attending the execution thereof, excluding, how- 
 ever, their mere oral declarations} 
 
 » Idem, page 480. A bare covenant of warranty in a deed only relates to 
 title, not to quantity. Burbridge v. Sadler, 46 W. Va. 39, 32 S. E. Rep. 
 1029. 
 
 = Crislip V. Cain, supra, at page 529. 
 
 3 Crislip V. Cain, supra, page 544; Boggs v. Harper, 45 W. Va. 554, 31 S. 
 E. Rep. 943. 
 
 ■t Crislip, Guardian, v. Cain, 19 W. Va. 443; Hansford v. Coal Co., 22 W. 
 Va. 70; Bieme v. Erskine, 5 Iieigh, 59. 
 
ABATEMENT. 15 
 
 After an elaborate and careful examination of tHe authorities 
 bearing on the question, made by Judge Green in the case of 
 Crislip, Guardian, v. Cain, cited in the foot-notes, this learned 
 jurist deduces the following conclusions, which may be accepted 
 as the rules of law governing in this particular, so far, at least, 
 as our state is concerned, if not in most jurisdictions elsewhere: 
 
 " I . If , by a written contract, a vendor agrees to sell, or by a 
 deed conveys, a tract of land described as containing a specified 
 number of acres or a specified number of acres more or less, for 
 the consideration of a specified price per acre for such land, this 
 is a contract by the acre, and if it turns out that there is a defi- 
 ciency in the number of acres specified, the vendee will be entitled 
 to a proportionate abatement from the purchase- money; and if it 
 turns out that there is a surplus of the land, the vendor is enti- 
 tled to an additional compensation proportionate to such surplus. 
 "2. If, by a written contract, a vendor agrees to sell, or by a 
 deed conveys, a certain tract of land, stating its boundaries as 
 containing a specified number of acres more or less, or as con- 
 taining about a specified number of acres, or as containing by 
 estimation a certain number of acres, or as containing, it is sup- 
 posed or it is said, a specified number of acres, or any other mode 
 of designating the quantity, which shows that the exact quantity 
 ■was unknown, such a contract is clearly a. sale in gross without 
 warranty of the quantity; and if there be a deficiency in the 
 number of acres, unless there be fraud on the part of the vendor 
 in the statement, that the number of acres was really estimated 
 to be the quantity named, the vendee is not entitled to any abate- 
 ment from the purchase-money because of such deficiency; nor 
 would the vendor in such case be entitled to any additional com- 
 pensation should it turn out that there was a surplus over the 
 number of acres named. ^ 
 
 "3. If, by a written contract, a vendor agrees to sell, or by a 
 deed conveys, a certain tract of land, stating its boundaries, this 
 is prima facie a. contract in gross without a warranty that there is 
 in the tract a specified number of acres; and if the price named 
 in such contract to be paid by the vendee is an exact multiple of 
 the number of acres specified; then there is also ambiguity as to 
 whether this is a sale in gross or by the acre; and where such an 
 ambiguity exists on the face of the contract or deed, proof of the 
 
 ' See Pratt v. Bowman, 37 W. Va, 715, 17 S. E. Rep. 210. 
 
1 6 EQUITY PRINCIPLBS. 
 
 circumstances surrounding the case and the situation of the 
 parties, and also their conduct in carrying the contract into exe- 
 cution, may be admitted in aid of the true construction of the 
 contract or the understanding of the parties; but all parol decla- 
 rations of the parties, either before or at the time or after the 
 execution of such contract or deed, must be excluded in inter- 
 preting such contract or deed. ' ' ^ 
 
 § 7. Fraud of the vendor affecting the rights of the vendee 
 — Abatement in such case — 
 
 It is a favorite maxim of equity that it will relieve against 
 fraud, and, therefore, if the vendor has been guilty of any fraudu- 
 lent misstatements to the vendee as to the quantity of land pro- 
 posed for sale, and such misstatements have in any manner 
 influenced the vendee in making the purchase at the price agreed 
 upon between the parties to the contract, equity will, un- 
 doubtedly, in such case grant relief, without any regard to the 
 question whether the sale was by the acre or in gross? Thus, if 
 a vendor conveys a tract of land, with general warranty, as con- 
 taining by estimation a specified quantity, more or less, when, in 
 fact, his own title papers call for less than such specified quantity, 
 he is guilty of a fraud upon the vendee and is bound to make 
 good to him the difference in acreage.^ So where a party, by 
 written agreement, sells a tract of land at a specified price, upon 
 an unqualified statement that it contains a definite quantity or 
 specified number of acres, it will be held prima facie that the 
 vendee was influenced to pay, or agree to pay, the price specified 
 because of such statement;* and should it afterwards turn out that 
 there is a less number of acres than represented, the vendor must 
 make good the deficiency.^ 
 
 ' The following cases exemplify what constitutes a sale by the acre: Nelson 
 V. Carrington, 4 Munf. 332; Carter v. Campbell, GUmer, 159; Bieme v. Er- 
 skine, 5 I/eigh, 59. While the following will illustrate the circumstances 
 under which a sale will be treated as one in gross: Hull v. Cunningham, i 
 Munf. 330; Russell v. Keeran, 8 Leigh, 9; Pendleton v. Stewart, 5 Call, i. 
 See Boggs v. Harper, 45 W. Va. 554, 31 S. E. Rep. 943. 
 
 = Anthony v. Oldacre, 4 Call, 489; Bedford v. Hickman, 5 Call, 236; Cris- 
 lip V. Cain, 19 W. Va. 547; Duvals v. Ross, 2 Munf. 290; Nelson v. Matthews, 
 2 H. & M. 164; Watkins v. Elliott, 28 Gratt, 380; Boschen v. Jurgen, 92 Va. 
 756; 24 S. E. Rep. 390. 
 
 3 Nelson v. Matthews, 2 H. & M. 164. 
 
 «_Boggs V. Harper, 45 W. Va. 554; 31 S. E. Rep. 944. s Idem. 
 
ABATEMENT. 17 
 
 As to the principle now under treatment, Judge Green has an- 
 nounced, after a careful examination of the subject, the two fol- 
 lowing rules: (a.) "Where a contract or deed is a sale in gross 
 of a tract of land, and the number of acres in the tract is stated 
 to be by estimation or by supposition; or to be between a specified 
 number of acres, and another specified number of acres, 
 or in any other manner, so as to show, that the vendor 
 does not profess to know the number of acres in the tract, such 
 statements must be regarded as representations of the quantity 
 of the land made by the vendor not upon his own personal 
 knowledge; and in order to establish a fraud by him, so as to 
 make him responsible for a deficiency in the estimated quantity, 
 it must be shown that the vendee relied on such representations, 
 was thereby induced to purchase at the price, which he paid or 
 agreed to pay, and that the vendor either did not believe his 
 representations to be true, or had no knowledge or information 
 on the subject." 
 
 (5.) "Where a contract or deed is a sale in gross of a tract of 
 land, and the exact number of acres is specified, or it is said to 
 contain a specified number of acres, more or less (which last ex- 
 pression means about the specified number of acres), such exact 
 specification of the number of acres, or such specification of 
 them as a certain number of acres, more or less, is to be re- 
 garded as a representation made on the personal knowledge of the 
 vendor, and it is unnecessary in order to establish a fraud on him, 
 which will render him responsible for a deficiency in the speci- 
 fied number of acres, or even if they be stated as a certain num- 
 ber more or less, for a deficiency beyond the usual allowance for 
 the ordinary errors in surveying. In order to prove that he knew 
 the statement he made to be true, it is not necessary to prove 
 that he did not believe, that there was in the tract the specified 
 number of acres; for though he did believe, that there was the 
 specified number of acres, he ought not to have stated them posi- 
 tively as so many, or so many acres more or less: and if the 
 vendee placed reliance in this statement and was thereby in- 
 duced to purchase the tract at the price, which he paid or agreed 
 to pay for it, the vendor would in law be guilty of a fraud and 
 would be responsible for such deficiency; and in the absence of 
 all proof the presumption would be, that the vendee did rely 
 upon such a statement made on the vendor's own knowledge, and 
 was thereby induced to purchase the land at the price paid or 
 
1 8 EQUITY PRINCIPLBS. 
 
 agreed to be paid; but such presumption could be disproved by 
 parol evidence offered by the vendor."^ 
 
 § 8. Deficiency in quantity of land mentioned in the deed 
 arising from mistake — 
 
 In our courts where there has been a mutual, innocent mistake 
 of the parties as to the quantity of land contained in the tract sold, 
 a court of equity will sometimes rescind the contract of sale, but 
 will not decree compensation for any excess or deficiency. The 
 only telief afforded in such case is that of a rescission of the con- 
 tract, and thus putting the parties in the same situation in which 
 they found themselves before the sale was made.* 
 
 In these cases, however, of mutual mistake of the parties as to 
 the extent of the area of the land sold, the purchaser has the op- 
 tion whether he will submit to a rescission, or pay the additional 
 consideration for the excess demanded by the vendor, unless he 
 has lost his right to demand such compensation by his own act 
 or negligence; or unless, indeed, it should further clearly appear, 
 that the bargain was so advantageous to the purchaser, that, if 
 the option of rescission or compensation remained with him, he 
 would not elect the latter.' 
 
 In the state of Virginia a contrary rule obtains and compensa- 
 tion is enforced in cases of mutual, innocent mistake, just as 
 upon any other proper ground of abatement.* 
 
 § 9. Unliquidated damages not the subject of abatement— 
 In those instances wherein the measure of damages is not cer- 
 tain, as for instance if the vendor had fraudulently stated that a 
 certain spring on the land was a constant one, which never went 
 dry, and it should afterwards appear that this statement or assur- 
 ance was false, a court of equity could not allow an abatement 
 of the purchase-money, for this would be allowing unliquidated 
 damages as an off-set.^ It is only in those cases where the 
 
 ' Crislip, Guardian, v. Cain, 19 W. Va. 547, 548. 
 
 » Crislip, Guardian, v. Cain, 19 W. Va. 557; Western Mining & Manu^ 
 facturing Co. v. Peytona Coal Co., 8 W. Va. 438, 439. 
 
 3 Western Mining & Manufacturing Co. v. Peytona Coal Co., supra. 
 
 •Blessing v. Beatty, i Rob. 287; Watson v. Hoy et al., 28 Gratt. 698; 
 Quesnel v. Woodlief, 6 Call, 218. 
 
 5 Crislip, Guardian, v. Cain, 19 W. Va. 520; Robertson v. Hogshead, 3 
 Leigh, 667. 
 
ABATEMENT. 19 
 
 amount to be allowed or recovered is fixed and certain and can 
 be ascertained with greater ease, and certainty in a court of 
 equity than in a court of law, that chancery will take jurisdic- 
 tion for the purpose of abatement.* 
 
 § 10. Cases wherein all the purchase-money has been 
 paid — 
 
 In bringing suit to recover back money already paid as the 
 price of land, the courts make a distinction between those cases 
 wherein relief is sought because of a deficiency in the quantity 
 of land sold, and those instances where there has been an entire 
 failure of title. 
 
 It is well settled that wherever one could abate from unpaid 
 purchase-money, in case suit should be brought by the vendor to 
 enforce its payment (because of a deficiency in the number of 
 acres called for in the contract of sale or in the deed), the 
 vendee may also in turn sue the vendor for the re-imbursement 
 of such amount as would properly constitute an abatement of 
 unpaid purchase-money.'' In the case of Kelly v. Riley, cited in 
 the foot notes, the court, after a careful examination of the 
 question there arising, being that involving the equitable right 
 of a vendee to recover back money paid as the price of land for 
 a deficiency in the acreage bargained for, says: "A court of 
 equity, as well, also, as a court of law,' has jurisdiction to decree 
 compensation for a deficiency in quantity of land sold, although 
 the land has been conveyed by deed with general warranty and 
 the purchase- money has been paid." But, on the other hand, 
 if the vendee is induced to buy land under assurances from the 
 vendor that the title is perfect and takes a deed therefor with 
 covenants of general warranty and pays the entire purchase- 
 money, and it afterwards turns out that the title to such land is 
 worthless, the vendee in such case is without remedy in equity.* 
 And where a purchaser of land has accepted a deed therefor with 
 covenants of general warranty, with a vendor's lien reserved 
 therein, and suit is brought against him for the purchase-money, 
 he cannot defend in equity against this suit by a retention of the 
 
 • Crislip, Guardian, v. Cain, supra, 520. 
 » Kelly V. Riley, 22 W. Va. 247. 
 
 3 Burbridge v. Sadler, 00 W. Va. 000, 32 S. E. Rep. 1029. 
 
 * Laidley v. Laidley, 25 W. Va. 525; Abemathy v. Phillips, 82 Va. 679; 
 s. c. I S. E. Rep. 113. 
 
20 EQUITY PRINCIPLES. 
 
 purchase-money because of defective title, unless the grantor is 
 insolvent, or the warranty not binding.-^ In such case he must 
 pay the purchase-money and look to the warranty for indemnity.' 
 
 §. II. Evidence of the vendor's representations as to the 
 quantity of land sold — 
 
 Where the sale is apparently one in gross, but has been super- 
 induced by the representations of the owner as to the number of 
 acres in the tract or boundary, such representations not appear- 
 ing in the contract of sale or deed for the land, resort is had to 
 facts and circumstances occurring anterior to the contract or 
 deed, or contemporaneous therewith or subsequently thereto, to 
 show these representations. It is common in such cases, if such 
 matters did occur, to, prove that prior to the sale there were 
 propositions to sell and buy by the acre, or that since the sale 
 the parties spoke of it as a sale by the acre.' 
 
 An advertisement for the sale of the land in a newspaper by 
 the owner in which it is described as containing about a specified 
 number of acres;* parol testimony showing that the risk of the 
 quantity of the land was taken upon himself by the vendee, and 
 that he was told by the vendor that he did not know how many 
 acres were in the tract, and he must take it by the boundary;^ a 
 verbal statement or assurance by the vendor to the vendee that 
 the tract offered for sale contains a certain number of acres;^ the 
 exhibition of a map to the purchaser showing that the tract con- 
 tains a certain number of acres ;^ a verbal contract of sale made 
 between the parties prior to the deed for the land in which 
 the vendor positively informed the purchaser that there was a 
 certain number of acres in the tract,^ are, each and aU, proper 
 matters to be considered by the court in determining whether a 
 vendor has made such statements and representations to the 
 vendee, as to the quantity of land in the tract sold, as to have 
 induced the vendee to purchase. 
 
 And, though the contract be in writing and unambiguous and is 
 a sale in gross, yet, if the pleadings show that the issue between 
 them is, whether the vendor did misrepresent the number of acres 
 
 ' Bennett v. Pierce, 45 W. V. 654, 31 S. E. Rep. 972. - Idem. 
 
 3 Crislip, Guardian, v. Cain, 19 W. Va., at page 548. 
 
 * Quesnal v. Woodlief, 6 Call, 218. s Bierne v. Erskine, 5 Leigh, 59. 
 
 6 Hoback v. Kilgores, 26 Gratt. 442. ? Watson v. Hoy, 28 Gratt. 698. 
 
 * Nichols V. Cooper, 2 W. Va. 347. 
 
ABATEMENT. 21 
 
 in the land by the contract to the prejudice of the vendee, any 
 sort of parol evidence which tends to establish such fraud may 
 be received, even though it tends to contradict the written con- 
 tract, as showing that the land was considered by the parties as 
 sold by the acre.^ 
 
 § 12. Extent of deficiency in quantity of land sold, to au- 
 thorize an abatement — 
 
 In order to invoke the aid of a court of equity for relief on the 
 ground that there is a deficiency in the quantity of land pur- 
 chased, the difference between the number of acres actually in the 
 tract and that which it was represented by the vendor to contain, 
 must be material — more than would result as a difference depend- 
 ent upon a variation of the magnetic needle or a mere re-location 
 of the lines of the survey. 
 
 If the actual deficiency does not exceed five per cent of the 
 estimated acreage, the court will not lend its aid.' 
 
 § 13. Payment for excess of land beyond quantity called 
 for in the contract or deed — w^hen may be required 
 by vendor — 
 
 If it appears that the sale was not one in gross, but by the acre, 
 and it afterwards turns out that there is an excess in the number 
 of acres over that estimated by the parties to the contract or 
 deed, the vendor wiU be entitled to compensation for such ex- 
 cess at the rate of the price per acre at which the land was sold.' 
 
 In sales of this kind the right to relief is mutual, and may be 
 invoked as well by the vendor as by the vendee. But the char- 
 acter of the relief afforded is not always the same when the 
 vendor is the plaintiff as when the vendee is seeking the aid of 
 the court. In the former case, that is, where there has been a 
 sale of land in gross, and it is afterwards discovered that an ex- 
 cess in the quantity exists, and it clearly appears that such excess 
 is so great as to affect the terms of the contract, and warrant the 
 conclusion that the sale would not have been made had the truth 
 as to the quantity of land been known, the court will, on appli- 
 
 ■ Depue V. Sergeant, 21 W. Va. 326. 
 
 ' Western Mining & Manufacturing Co. v. Peytona Cannel Coal Co., 8 W. 
 Va. 406, 437; Kelly v. Riley, 22 W. Va. 247; Pratt v. Bowman, 37 W. Va. 
 715; s. c. 17 S. E. Rep. 210 
 
 3 Bierne v. Erskine, 5 Leigh, 59. 
 
22 EQUITY PRINCIPLBS. 
 
 cation of sucli vendor, rescind the sale, but will not require the 
 vendee against his will to keep the land and pay for the excess.^ 
 Where, however, the vendee, after he discovers an excess of 
 acreage in the land purchased by him, so large that it could not 
 have been taken into contemplation by the vendor, and without 
 making his discovery known or offering to rescind the contract, 
 sells the land to an apparently innocent purchaser, and thus puts 
 it beyond the power of a court of equity to restore the interested 
 parties to their original rights, on application of the injured 
 party, the court will require the vendee, either to place himself 
 in a condition to rescind the contract, or pay to him entitled 
 thereto a just compensation for such excess.* 
 
 § 14. Rule determining the amount of abatement, or the 
 compensation for the excess in the quantity of land 
 sold — 
 
 It can be laid down as a general rule that compensation or 
 abatement in cases of the character now being considered, must 
 be according to the average value per acre of the whole tract, un- 
 less there should be particular circumstances requiring a depart- 
 ure from this rule.' 
 
 In the case of Watson v. Hoy et al. ,* there was a departure 
 from the rule as just announced, because of the exceptionally 
 valuable character of the buildings on the property, as well also 
 as the bridge franchises and fisheries appurtenant thereto, and 
 the relative value of these things was deducted from the contract 
 price of the whole estate, and the remainder thus left was taken 
 as a basis from which to determine the average price per acre by 
 which the amount of the abatement to be made should be ascer- 
 tained. "* 
 
 ' Pratt et al. v. Bowman et al., 37 W. Va. 715; s. c. 17 S. E. Rep. 210. 
 
 ' Idem. 
 
 3 Blessing's Adm'r v. Beatty, i Rob. 305; Hoback v. Eilgore, 26 Gratt. 442? 
 Trippett V. Allen, Id. 721; Nelson v. Matthews, 2 Hen. & Munf. 164; 
 Nelson v. Carrington, 4 Munf. 332, 340; Hundley v. Lyons, 5 Munf. 342; 
 Yost V. Mellicote's Adm'r, 77 Va. 610; Kelly v. Riley, 22 W. Va. 247; Board 
 V. Wilsofi, 34 W. Va. 609; s. c. 12 S. E. Rep. 778; Morgan's Adm'r v. Blast 
 et al., 34 W. Va. 332; s. c. 12 S. E. Rep. 710; Depue v. Sergent, 21 W Va 
 327. 
 
 < 28 Gratt. 698. 
 
 5 See also the case of Hoback v. Kilgore, 26 Gratt. 442. 
 
ABATEMENT. 23 
 
 In the case of Yost v. Mallicote's Adrn'r.^ the court, in the 
 course of its opinion, says: ' 'This court in Watson v. Hoy, supra, 
 was of opinion that in that case there were particular circum- 
 stances requiring a departure from the rule, on account of bridge 
 privileges and fisheries of great value, and the exceptional char- 
 acter of the elegant mansion at Chatham. But what and where 
 are the exceptional and particular circumstances in this case? A 
 wooden farm-house, with the usual out-buildings and fences, seem 
 to present the most ordinary case which could be stated, and the 
 estimate and deduction of the value of the fences seem to be 
 unprecedented." When compensation or abatement is sought be- 
 cause the vendor had no title to a part of the tract sold, the measure 
 of damages is, such portion of the purchase-money as the rela- 
 tive value of the land lost bears to the price of the whole land.* 
 
 Where the contract price per acre is fixed or already determined 
 by the court itself, this will be taken and treated as the average 
 value per acre, or the criterion by which to determine the sum to 
 be abated.' 
 
 ■ 77 Va. 610, 615. 
 
 ' Butcher v. Peterson, 26 W. Va. 447; Clarke v. Hargrove, 7 Gratt. 399; 
 Renick v. Renick, 5 W. Va. 285; Koger v. Kane, 5 Leigh, 606. 
 3 Anderson v. Snyder, 21 W. Va. 632. 
 
24 EQUITY PRINCIPI,BS. 
 
 CHAPTER III. 
 
 ACCIDENT. 
 
 ? 15. Definition of accident, and the cases wherein equity will grant relief 
 therefrom. 
 15a. Limitations to relief in equity from accident. 
 
 15. Definition of accident, and the cases wrherein equity 
 will grant relief therefrom — 
 
 Accident is one of the oldest subjects of which equity took 
 cognizance;' and we are informed that in the earlier history of 
 the court of chancery, when its jurisprudence was not very clearly 
 defined, it afforded redress in many cases of accident in which 
 relief would now be refused.^ 
 
 Accident is said to be one of those "cases of extremity," which, 
 in the" early days of chancery jurisdiction, gave to the suitor his 
 right to appeal to the conscience of the chancellor, and the par- 
 ticular case afterwards furnished the generic name to this head 
 of jurisdiction, and the term "accident" is now commonly used 
 to include all cases of extremity,' and is defined to be "an unfore- 
 seen and injurious occurrence not attributable to mistake, neg- 
 lect, or misconduct." * Of course, as in other cases of equitable 
 cognizance, it must appear that the party seeking relief on this 
 ground is conscientiously entitled thereto, and that he has no 
 adequate remedy at law.^ This last condition is in subordination 
 to the principle stated,^ that where the court formerly took juris- 
 diction it will continue to exercise it, notwithstanding that by 
 changes in the rules of law, a remedy is given by the courts of 
 law.^ But it must be observed, that it is not every accident 
 against which equity will relieve. Thus, the court will not inter- 
 fere in matters of positive contract, created by the deliberate act 
 of the parties, though the fulfillment and discharge of the obli- 
 gations thereby imposed have been prevented by inevitable 
 
 • Fetter on Equity, 114. = Idem. 
 
 3 Bispham's Princ. Eq. (5th ed.), 258, 259. 
 
 4 Idem; i Beach, Mod. Eq. Jur., I 25, s Mem. « Ante ? a 
 ' Beach, Mod. Eq. Jur., \ 25. ' * *' 
 
ACCIDBNT. 25 
 
 accident.'^ So, also, in the absence of statute, if a lessee cove- 
 nants to pay rent or to keep the demised premises in repair, he 
 will be bound to do so in equity as well as at law, though the 
 premises should be afterwards destroyed by fire, lightning, or 
 other overwhelming cause.^ But with us this rule has been 
 changed by statute.^ 
 
 The cases in which courts of equity generally afford relief on 
 the ground of accident, are those involving lost or destroyed 
 instruments,* the imperfect execution of powers,* erroneous pay- 
 ments,^ erroneous settlements and execution of notes and other 
 evidences of debt,' and judgments and new trials.* 
 
 The most of these matters referable to accident will be treated 
 of under appropriate heads to themselves and further along in the 
 work. 
 
 § 15a. Limitations to relief in equity from accident — 
 
 Formerly, every kind of case in which an unexpected result 
 had been produced by accident, — every sort of misfortune, was the 
 subject of equitable cognizance and relief.' But its jurisdiction 
 as to accident is now clearly limited, and the instances in which 
 it is and is not exercised are well defined.^" Thus, as stated, it 
 will not relieve from the obligation of contract;" nor will it sup- 
 ply or establish the records of a court of law which have been 
 lost or accidentally destroyed;^ nor will equity interpose on behalf 
 of one who has no vested right, but whose claim is based upon a 
 mere expectancy, or hope resting upon the discretion or volition 
 of another;^ as for example, if a testator has been prevented by 
 pure accident from making an intended bequest in favor of a 
 person, equity cannot afford him relief;^* and it will not interfere 
 in behalf of anyone as against a bona fide purchaser for a valuable 
 consideration and without notice.^ 
 
 ' Snell's Princ. Eq. 365. 
 
 = Idem; Ross v. Overton, 3 Call, 309: ' Code, ch. 72, sec. 22. 
 
 « Snell's Princ. Eq. 357. ^ Idem. ' Idem. 
 
 ^ Caldwell v. Caperton, 27 W. Va. 397. * Seeposi, H 351-355. 
 
 9 2 Pomeroy's Eq. Jur. (2d ed.) § 825. "> Idem. " Idem, 826. 
 
 " Idem, 827. '3 Idem, 828. ■•' Idem. 's Mem, 829. 
 
26 BQUITY PRINCIPLBS. 
 
 CHAPTER IV. ' 
 ACCOUNT. 
 
 ? i6. Account, and when equity will afford relief in the matter thereof. 
 i6a. Matters of account as incident to suits in equity. 
 i65. The plea of stated account. 
 
 § i6. Account, and Avhen equity Avill afford relief in the 
 matter thereof — 
 
 As in matters of account courts of law cannot give so complete 
 a remedy as that which equity affords, they are per se within the 
 scope of equitable jurisdiction, and are among the most compre- 
 hensive of those which it has assumed.^ The question as to what 
 tribunal has jurisdiction in cases of this character is largely de- 
 termined by considerations of convenience.^ No precise rule can 
 be laid down defining the extent and limits of the concurrent 
 jurisdiction, which courts of equity wiU exercise with courts of 
 law in matters of account.^ In such matters courts of equity re- 
 serve to themselves a large discretion, in the exercise of which, 
 they will pay due regard to the nature of the case and the situa- 
 tion and conduct of the parties.* Of course, when the remedy at 
 law is plain and adequate, equity will not take jurisdiction in 
 m.atters of account.* 
 
 In I^afeverv. Billmyer,* the court says that equity has jurisdic- 
 tion of matters of account : ( i ) Where there are mutual demands, 
 and a fortiori, when complicated. (2) Where the accounts are on 
 one side and a discovery is sought that is material to the relief. 
 K\sAi}cia\.\\. does not take cognizanct oi%xichm2X\jexs\ (r) Where 
 the demands are all on one side, and no discovery is claimed or 
 necessary. (2) Where on one side there are demands, and on 
 the other mere payments or set-offs, and no discovery is sought 
 or required. These principles were subsequently approved in the 
 case of Petty v. Fogle,' with the qualification that they do not 
 
 ' TiUar V. Cook et al., 77 Va. 477- ' TiUar v. Cook et al., supra, 479. 
 
 5 Grafton v. Reed et al., 26 W. Va. 437. « Mem. 
 
 5 Van Dorn v. Lewis Co. Ct., 38 W. Va. 267; 18 S. E. Rep. 
 " 5 W. Va. 33. 7 16 w. Va. 497, 
 
 579- 
 
ACCOUNT. 27 
 
 embrace all the cases as to matters of account, in wliicli equity- 
 should, or should not, take jurisdiction. It is also held in this 
 same case that no general rule embracing all cases as to matters 
 of account, in which equity will or wiirnot take jurisdiction, can 
 with propriety be safely laid down.^ 
 
 But while the court in this case declares that the rule in 
 Lefever v. Billmyer is not broad enough to cover all the cases of 
 account wherein equity may assume jurisdiction, it does not un- 
 dertake to say what those cases are that do not fall under one or 
 more of these principles. "Without attempting to lay down or 
 classify all the abstract rules governing this branch of equity 
 jurisdiction, we think that we may properly enumerate the fol- 
 lowing as well-settled propositions, applying in matters of account 
 and as giving equity jurisdiction. 
 
 (a) Where a fiduciary relation exists between the parties, as in 
 favor of a principal against his agent, though not in favor of the 
 agent against the principal;^ in favor of a bank against its cashier 
 who has been intrusted with the control and custody of its funds;' 
 in favor of a ward against a guardian and his sureties for an ac- 
 counting and decree for the amount found due;* in favor of ten- 
 ants in common against co-tenants, and that, too, without refer- 
 ence to the necessity of a discovery.* 
 
 (^) By patentee against those who infringe upon his patent.^ 
 
 (c) Where there are mutual accounts between the plaintiff and de- 
 fendant? 
 
 ' See on this point, Grafton v. Reed, 26 W. Va. 437. 
 
 ' Snell's Princp. Eq., 438. " It has been argued that if the principal may 
 commence an action against his agent, the agent may likewise do so against 
 his principal; but the rights of principal and agent are not correlative. The 
 right of the principal rests upon the trust and confidence reposed in the 
 agent, but the agent reposes no such confidence in the principal." Idem, 
 438, 439. See I Bart. Ch. Prac. 67. 
 
 3 Bank v. Jeffries, 21 W. Va. 504, 508; Berkshire v. Evans, 4 I/eigh, 223. 
 
 « 2 Bart. Ch. Prac. 696, 697. 
 
 s Leach v. Beattie, 33 Vt. 195; Andrews v. Murphy, 12 Ga. 431; Field v. 
 ■Craig, 8 Allen (Mass.) 357. But where a trust has been fully executed, and 
 the trustee has turned lie money over to a third party at the instance of the 
 cestui que trust, , and such third party refuses to account for or pay over the 
 same, the remedy of the plaintiff is at law. Hoke v. Davis, 33 W. Va. 485; 
 s. c. 10 S. E. Rep. 820. 
 
 " Snell's Princp. Eq., 439- 
 
 ^ Snell's Princp. Eq. 439; Lefever v. Billmyer, 5 W. Va. 33; Petty v. Fogle, 
 16 W. Va. 497; Pearl v. Nashville, 10 Yerg. (Tenn.) 179; Porter v. Spencer, 
 
28 EQUITY PRINCIPLES. 
 
 (d) Where tJie accounts are on one side and a discovery is sought 
 that is material to the relief} The rule here is that wherever 
 a party's right depends upon a discovery, a court of equity has 
 jurisdiction; but wherever a discovery is sought for without 
 which it is apparent upon the bill itself that the plaintiff may 
 proceed at law, it shall not entitle him to relief.^ 
 
 (f) Where the accounts are complicated? Where matters of ac- 
 
 2 Jolins. (N. Y.) Ch. 169; Smith v. Marks, 2 Rand. 449; Blakely v. Briscoe, 
 1 Hempst. 114. As to what are mutual accounts, the best definition, says 
 Snell, is to be found in the judgment in Phillips v. Phillips, 9 Hare, 471. 
 "I understand a mutual account to mean not merely where one of the two 
 parties has received money and paid it on accoimt of the other, but where 
 each of the two parties has received and also paid on the other's account. I 
 take the reason of that distinction to be, that in the case of proceedings at 
 law, where each of the two parties has received and paid on account of the 
 other, what would be to be recovered would be the balance of the accounts; 
 and the party plaintiff would be reqtiired to prove, not merely that the other 
 party had received money on his account, but also to enter into evidence 
 of his own receipts and payments — a position of the case which, to say the 
 least, would be difficult to be dealt with at law. Where one party has 
 merely received and paid moneys on account of the other, it becomes a sim- 
 ple case. The party plaintiff has to prove that the moneys have been re- 
 ceived, and the other party has to prove his payments. The question is only 
 as to receipts on the one side and payments on the other, and it is a mere 
 question of set-off; butit is otherwise where ifa^-A^a^j' has received and paid." 
 " Bill in chancery stating running accounts for many years between plain- 
 tiff and defendant, consisting of numerous items of debit and credit or claims 
 for them on both sides, and pra3ring an account and decree for balance: 
 Held, this is a bill for an account which equity will entertain, though as- 
 sumpsit might have lain at law." Hickman v. Stout, 2 Leigh, 6. 
 
 » Lefever v. Bilhnyer, 5 W. Va. 33; Petty v. Fogle, 16 W. Va. 497; Knotts 
 V. Tawer, 8 Ala. 743; Yates v. Stuart's Adm'r, 39 W. Va. 124; s. c. 19 S. E- 
 Rep. 423. 
 ' Bass v. Bass, 4 H. & M. 478, 479. 
 
 3 Penn et al. v. Ingles, 82 Va. 65; Snell's Princp. Eq. 440. The account 
 must have become so complicated that a court of law is incompetent to ex- 
 amine it upon a trial with the necessary accuracy. Snell's Princp. Eq. 440. 
 "If a bill for an account in respect of particular items fails to sustain the 
 demand upon these particular items, the court will not permit a general 
 vague charge that the accounts are voluminous and intricate, which is in- 
 serted mainly as a pretext for the purpose of bringing the case within the 
 jurisdiction of a court of equity, to protect the bill against a demurrer for 
 want of equity." Lafever v. Billmyer, 5 W. Va. 33. 
 
 Under this rule, a court of equity has jurisdiction in a suit by a high 
 sheriff against his deputy and the sureties of the deputy to have a settlement 
 of the accounts of several administrators upon estates committed to the high 
 
ACCOUNT. 29 
 
 count between the complainant and defendant are complicated, 
 embracing the transactions of many years, relating to the em- 
 ployment of steamboats upon their joint account for and against 
 each other, equity will entertain a bill for a settlement and the 
 recovery of the balance.^ 
 
 A court of equity will not entertain jurisdiction in matters of 
 account: 
 
 (a) Where the demands are all on one side, and no discovery 
 is claimed or necessary? 
 
 {b) Where on one side there are demands, and on the other mere 
 payments or set-offs, and no discovery is sought or required} 
 
 {c) Where the claim simply involves the breach of a personal 
 agreement or contract, for which the remedy at law is adequate and 
 complete.^ 
 
 % i6a. Matters of account as incident to suits in equity — '■ 
 We have thus far considered the subject of accounting as an 
 independent ground of equity jurisdiction. The remedy of ac- 
 counting is in most instances a necessary incident and a part of 
 the relief granted in suits brought by the parties beneficially in- 
 terested against trustees, either express or implied, personal rep- 
 resentatives, guardians, and the like.^ 
 
 The jurisdiction of equity is practically exclusive in suits for 
 an account and settlement of partnership affairs, including suits 
 for an accounting and settlement of the firm affairs between the 
 co-partners themselves, and their survivors and personal repre- 
 sentatives of the deceased members of the firm, and in the adjust- 
 ment of the demands of the firm creditors and the creditors of 
 the individual partners.* 
 
 sheriff, and which went into the hands of the deputy. Tyler et al. v. Nel- 
 son's Adm'x, 14 Gratt. 214. 
 
 ' Kirkman v. Vanlier, 7 Ala. 217. For a full consideration of this subject, 
 see Yates v. Stewart, 39 W. Va. 124, 19 S. E. Rep. 424-426. 
 
 ' Lafever v. Billmyer, 5 W. Va. 33; Petty v. Fogle, 16 W. Va. 497; Smith 
 V. Marks, 2 Rand. 449; Goddin v. Bland, 87 Va. 706; s. c. 13 S. E. Rep. 145. 
 
 3 Lafever v. Billmyer et al., 5 W. Va. 33; Petty v. Fogle, 16 W. Va. 497. 
 
 * Campbell v. Rust, 85 Va. 653; s. c. 8 S. E. Rep. 664; Goddin v. Bland, 
 87 Va. 706; s. c. 13 S. E. Rep. 145; Poage v. Wilson, 2 Leigh, 490; Hoke v. 
 Davis et al., 33 W. Va. 485; s. c. 10 S. E. Rep. 820; Smith v. Marks, 2 Rand. 
 
 449, 452, 453- 
 5 3 Pomeroy, Eq. Jur. (2d ed.), ? 142 1. 
 ' Idem. Touching this matter, vide the chapters treating on Executors 
 
30 EQUITY PRINCIPI<BS. 
 
 § i6b. The plea of stated account — 
 
 To a suit brought for an accounting of the transactions and 
 dealings between the parties thereto, as for illustration, matters 
 of partnership affairs, a defendant may set up in his answer,^ or 
 in a special plea in writing,* as a bar or defense, a stated or set- 
 tled account, and if upon issue joined thereon the court should 
 find in favor of the defendant, leave will be given the plaintiff to 
 amend his bill, by surcharging and falsifying the stated or settled 
 account, which can only be done by pointing out specifically the 
 items of error, mistake, or omission existing in the account 
 stated.^ But if the account is found to be correct, it constitutes 
 a complete bar to the suit.* 
 
 and Administrators, Guardian and Ward, Fiduciaries, and Creditors'' 
 Bills. 
 
 ' McNeel v. Baker, 6 W. Va. 153. 
 
 ' Weed V. SmuU, 7 Paige Ch. 573, 4 Law. ed. 280 and note; Bullock v. 
 Boyd, 2 Edw. Ch. 293, 6 Law. ed. 405 and note. 
 
 3 McNeel v. Baker, supra. * 3 Pomeroy, Eq. Jiir. (2d ed.), ? 1421. 
 
AGENCY. 31 
 
 CHAPTER V. 
 AGENCY. 
 
 ? 17. Agency — ^the cases thereunder giving rise to equity jurisdiction. 
 
 1 8. Who may act as agent. 
 
 19. Duty of agent toward principal. 
 
 20. Attomeys-at-law and their clients. 
 
 § 17. Agency — the cases thereunder giving rise to equity 
 jurisdiction — 
 
 The most important agencies of this sort, which fall under the 
 cognizance of courts of equity, are attorneys, factors, bailiffs, 
 consignees, receivers and stewards. In most agencies of this sort 
 there are mutual accounts between the parties; or if the account 
 is on one side, as the relation naturally gives rise to great per- 
 sonal confidence between the parties, it rarely happens that the 
 principal is able, in cases of controversy, to establish his rights, 
 or to ascertain the true state of the accounts, without resorting to 
 a discovery from the agent. ■* 
 
 Equity does not deal with all the various propositions arising 
 out of the relation of principal and agent, but concerns itself 
 mainly with those questions and matters that pertain to the 
 duties of the latter toward _the former. Thus an agent who 
 located land for himself, when he ought to have located it for his 
 principal, will be treated by a court of equity as a trustee for his 
 principal.'' 
 
 Equity delights in holding an agent to the full line of his duty 
 toward his principal, and will not allow him to occupy an adverse 
 situation with reference to the principal's interest; he cannot 
 make himself a purchaser when employed to sell, nor if employed 
 to purchase can he make himself a seller.' 
 
 • Story, Eq. Jur., ? 462. 
 
 = Massie v. Watts, 6 Cranch, 148; Taylor v. Knox, i Dana (Ky.) 391. 
 
 3 Deep River & Co. v. Fox, 4 Ired. (N. C.) Eq. 61; McKinley v. Irwin, 13 
 Ala. 681; Walker v. Palmer, 24 Ala. 358; Banks v. Judgh, 8 Conn. 388; 
 Sturdevant v. Pike, i Ind. 277; Mathews v. Light, 32 Me. 305; Copeland v. 
 Mercantile Ins. Co., 6 Pick (Mass.) 198; Ingerson v. Starkweather, Walk. 
 (Mich.) 346; Moore v. Mandelbaum, 8 Mich. 433; Moore v. Moore, 5 N. Y. 
 
32 EQUITY PRINCIPI<ES. 
 
 § 18. Who may act as agent — 
 
 Any one may be an agent, but not a principal, unless lie is other- 
 wise capable of entering into a binding obligation or contract.^ It 
 may be laid down as a general rule that all persons of sane mind, 
 except children of tender years and imbeciles, are capable of be- 
 coming agents.^ Hence, iniants,^ /ernes covert,^ persons attainted, 
 outlawed or excommunicated and aliens may be agents.^ The 
 only disqualification which seems to exist, to prevent a person 
 from becoming an agent, is the fact that he has interests adverse 
 to those created by the agency; or that he has already an agency 
 which is incompatible with the new agency.* And, we think, a 
 corporation could not act as an agent, when to do so would be 
 foreign to its purpose or articles of incorporation, and would, 
 therefore, be ultra vires. 
 
 § 19. Duty of agent tovrard principal — 
 
 The prime duty of every agent is to faithfully follow the di- 
 rections of his principal, and to act within the scope of his 
 authority and with fidelity and loyalty toward his principal.^ 
 He must take no advantage of his situation to the detri- 
 ment of his principal, and must make no concealments from 
 him that may operate to his prejudice. For illustration, if an 
 agent purchases from his principal a tract of land which he is 
 empowered to sell, concealing from him the fact that another 
 person will give a better price,. he is guilty of a fraud, and equity 
 will annul the contract,^ and will compel him to re-convey the 
 land, on his receiving his purchase- money with interest, making 
 him to accotmt for the rents and profits.' 
 
 In Mosley's Adm'r v. Buck et al., cited in the foot notes, the 
 
 (i Seld.) 256; Siannon v. Mannaduke, 14 Tex. 247; Segar v. Edwards, 11 
 Leigh, 218; Bell v. Bell, 3 W. Va. 182; Lane v. Black, 21 W. Va. 617; Colbert 
 V. Shepherd, 89 Va. 401; s. c. 16 S. Ei Rep. 246. 
 
 ' Clark on Contracts, p. 712. ' Lyon v. Kent, 45 Ala. 656. 
 
 3 Brown v. Hartford Ins. Co., 117 Mass. 479.' 
 
 * Hopkins v. MoUinieux, 4 "Wend. 465; Singleton v. Mann, 3 Mo. 465; 
 Pullman v. State; 78 Ala. 31. 
 
 s I Am. and Eng. Enc. Law, 334. 
 
 « Tewksburg v. Spruance, 75 111. 187; Tausig v. Hart, 58 N. Y. 425; 
 Central Ins. Co. v. Protection Ins. Co., 14 N. Y. 85; Vanderpool v. Kearns, 
 2 E. D. Smith (N. Y.), 170. 
 
 ^ Gillenwaters v. Miller, 49 Miss. 150; i Parson's Contracts, 41. 
 
 8 Mosley's Adm'r v. Buck et al., 3 Munf. 232. 9 Idem. 
 
AGENCY. 33 
 
 agent engaged to make sale of the land, concealed from his prin- 
 cipal the knowledge which he had acquired as such agent re- 
 specting the price at which the land could be sold, and taking 
 undue advantage of his position as agent, purchased the land 
 from the principal, who was then ignorant of material matters 
 affecting the value thereof at that time, and then sold it for a 
 much larger sum. The court held that it was the duty of the 
 agent to have disclosed to the principal his knowledge thus ac- 
 quired before he made such purchase, and that he must account 
 to the principal for the sum he received for the land, over and 
 above the amount paid by him to the principal. 
 
 § 20. Attorneys at law and their clients — 
 
 There are few of the business relations of life involving a higher 
 trust and confidence than that of attorney and client, or, generally 
 speaking, one more honorably and faithfully discharged; few 
 more anxiously guarded by the law, or governed by sterner prin- 
 ciples of morality and justice; and it is the duty of the court to 
 administer them in a corresponding spirit, and to be watchful 
 and industrious to see that confidence thus reposed shall not be 
 used to the detriment or prejudice of the rights of the party be- 
 stowing it.^ 
 
 The utmost good faith and strictest integrity must mark the 
 dealings and conduct of the attorney with his client. This is 
 dictated alike by private interest and public policy.^ If he has 
 undertaken the collection of a claim for a client and buys it, 
 whether by means of false representations or not, and even 
 though he has paid a fair price for it, the sale is voidable at the 
 option of the client. So, likewise, without the consent of his 
 client, he cannot purchase for his own benefit a'ny property of a 
 defendant sold under execution, unless he gives for it an amount 
 equal to the whole of his client's judgment; and without such 
 consent, he caimot purchase for his own benefit his client's prop- 
 erty at judicial sale.' But after the attorney has performed all of 
 
 ' Nelson, J., in Stockton v. Ford, ii How. 232. 
 
 = Lane v. Black, 21 W. Va. 617. See Ex parte Giberson, 4 Cranch C. C. 
 503, Fed. Cas. No. 5388; Haverty v. Haverty, 35 Kan. 438; 11 Pac. Rep. 364. 
 
 3 Newcomb. et al. v. Brooks et al., 16 W. Va. 32. . In this case, at page 65, 
 Green, J., says: "It is probable that the Fnglish courts have been more 
 jealous and suspicious of all dealings between solicitors or attorneys at law 
 
 3 
 
34 EQUITY PRINCIPLES. 
 
 his duties toward his client with reference to the matter in his 
 charge, and his relations as attorney to his client have ceased, he 
 may then deal as to that same or other property in which his 
 former client was interested, just as he might lawfully deal with 
 anyone else.^ And the same principle applies to an agent or 
 trustee.* 
 
 It is the duty of an attorney to disclose to his client whether 
 he has received any adverse retainer which may affect his judg- 
 ment or his client's interests,' and to communicate to the client 
 whatever it is important or material for him to know concerning 
 the business intrusted to his care and management.* It is also 
 the duty of the attorney to follow the instructions of his client;' 
 upon the collection of a claim, to immediately notify his client and 
 await his instructions,* and to do all things else which the welfare 
 and interests of his client at his hands, touching the matter which 
 he has undertaken to perform, in fairness, reasonable judgment 
 and diligence demand.^ 
 
 The attorney should keep and render an account of his dealings. 
 to his dient; and so strictly is this duty enforced, that a court of 
 equity may open the accounts after many years have elapsed and 
 vouchers are destroyed.* 
 
 The only other subject that we shall treat under this head, is 
 that of receivers, which will be considered by itself further along. 
 
 and their clients than the courts of this country would be, as the relation 
 generally between attorneys and clients iu Bngland is more permanent and 
 covers more ground than his relation generally does in this country. But 
 upon one point the Bnglish and all American writers I have seen are agreed 
 that an attorney at law cannot purchase property, real or personal, at a ju- 
 dicial sale, whether made by a commissioner of the court or by a sheriff, after 
 a judgment has been obtained and an execution issued, when his client 
 might sustain an injury by his being a purchaser." Here the learned judge, 
 cites numerous authorities, both American ahd Bnglish. 
 
 ' Williams v. Maxwell, 45 W. Va. 297, 31 S. B. Rep. 909. 
 
 » Board of Trustees v. Blair, 45 W. Va. 812, 3:2 S. E. Rep. 203. 
 
 3 Williams v. Reed, 3 Mass. 405. 
 
 * Weeks, Attys., § 262; Wain v. Beaver, 161 Pa. St. 605, 29 Atl. Rep. 114- 
 5 Cox V. Livingston, 2 Watts. & S. 103, 37 Am. Dec. 486. 
 
 « Voss V. Bachop, 5 Kan. 59; Jett v. Hempstead, 25 Ark. 462. 
 ' Weeks, Attys., ?? 259-282. 
 
 * Weeks, Attys", § 262, citing numerous cases. 
 
ARBITRATION AND AWARD. 35 
 
 CHAPTER VI. 
 ARBITRATION AND AWARD. 
 
 ? 21. Who may submit to arbitration. 
 
 22. Mode of submission to arbitration. 
 
 23. Submission by virtue of the statute. 
 
 24. All matters pertaining to the submission should be presented to the 
 
 arbitrators. 
 
 25. Power and authority of the arbitrators under rule of court. 
 
 26. Time -within -which an award must be made. 
 
 27. The revocation of a submission to arbitration. 
 
 28. No form necessary in submitting to arbitration under an order of 
 
 court. 
 
 29. The award. 
 
 30. The return of the award into court. 
 
 31. The sufficiency and validity of the award. 
 
 32. The setting aside of the award. 
 
 33. Illustrative cases of the sufficiency and insufficiency of causes for set- 
 
 ting aside an award. 
 
 34. Right of fiduciaries to submit matters in their charge to arbitration. 
 
 § 21. Who may submit to arbitration — 
 
 The submission to arbitration of matters in dispute between 
 parties may be done either at common law or under the statute ^ 
 by persons who are legally capable of entering into a contract.* 
 The only conditions or limitations as to this right are that the 
 party have such a control over the subject-matter that he can 
 carry out all the terms of the award.' 
 
 § 22. Mode of submission to arbitration — 
 
 At common law, the arbitration may be made orally or in 
 
 ' Thomasson v. Risk, 74 Ey. (11 Bush) 619; Conger v. Dean, 3 Iowa (3 
 Clark), 463; 66 Am. Dec. 93; Allen v. Chase, 3 Wis. 249; Eisenmeyer v. 
 Santer, 77 III. 515. 
 
 'Brady v. City of Brooklyn, i Barb. 584; Chapline v. Overseer of the 
 Poor, 7 Leigh, 231. 
 
 3 Morse on Arb. and Award, 3; Bean v. Fomam, 6 Pick. (Mass.) 269; 
 Watertown v. Waterbury, i Root (Conn.), 212. See Wamsley's Adm'r v. 
 Wamsley, 26 W. Va. 45. 
 
26 EQUITY PRINCIPI,ES. 
 
 wriiing, depending for its validity upon the subject-matter in- 
 volved.^ Where, however, a writing is necessary to pass the 
 title to the thing in controversy, a valid award disposing of such 
 title cannot be made unless the submission be in writing.^ i 
 
 There is no formality required in the matter of the articles of 
 arbitration; it is sufficient if an intention is expressed to submit 
 to and abide by the award of the arbitrators.^ 
 
 The submission may be a general one of all matters of differ- 
 ence between the parties or of some particular controversy;* and 
 when it is general, it embraces every thing in dispute between 
 the parties, but when of some one or particular thing, it is only 
 that special matter that may be considered by the arbitrators.^ 
 
 § 23. Submission by virtue of the statute — 
 
 Our statute provides that ' 'persons desiring to end any contro- 
 versy, whether there be a suit pending therefor or not, may sub- 
 mit the same to arbitration, and agree that such submission may 
 be entered of record in any court. Upon proof of such agree- 
 ment out of court, or by consent of the parties given in court, in 
 person or by counsel, it shall be entered in the proceedings of 
 such court; and thereupon a rule shall be made, that the parties 
 shall submit to the award which shall be made in pursuance of 
 such agreement. And when a pending cause is submitted to ar- 
 bitration, the defendant may make any defense to the plaintiff's 
 claim or demand that he could make under any proper plea filed 
 in' court, whether such plea has been filed or not, which he may 
 plead or file before the arbitrators in such manner as to give the^ 
 plaintiff notice of its nature, but not otherwise. Although the 
 claim of the plaintiff be jointly against several persons and the 
 set-off is of a debt, not to all, but only to a part of them, this 
 section shall extend to such set-off if it appear that the persons 
 
 "Titus V. Scantling, 4 Blackf. (Ind.) 89; Carter v. Scaggs, 38 Mo. 302; 
 Byrd v. Odem, 9 Ala. 775; Kelley v. Adams, 120 Ind. 340; 22 N. E. Rep. 317. 
 
 = Smith V. Douglass, 16 111. (6 Peck) 34; Bvans v. McKinsey, 16 Ky. 263. 
 
 3 Wilson V. Getty, 57 Pa. St. 266; Kimball v. Walker, 30 111. 482; Copeland 
 V. Hall, 29 Me. 93; Stewart v. Cass, 16 Vt. 663; 42 Am. Dec. 534; DufE v. 
 Core, 27 W. Va. 232. 
 
 t Sellick V. Adams, 15 John. 197, 5 L. Ed. 1060; Munro v. Alaire, 2 Caines' 
 Rep. 320, 2 L. ed. 444; De Long v. Stanton, 9 John. 38, 4 L. ed. 658; Bry- 
 ant V. Fisher, 85 N. C. 69. 
 
 5 Munro v. Alaire, supra; Kauffmann v. Myer, 6 Watts, 134; Wooden v. 
 Little, 3 McCord, 487; Samson v. Young, 50 N. H. 62. 
 
ARBITRATION AND AWARD. 37 
 
 against whom sucli claim is, stand in the relation of principal and 
 surety, and the person entitled to the set-off is the principal. 
 And when the defendant is allowed to file and prove an account 
 of set-off to the plaintiff's demand, the plaintiff shall be allowed 
 to file and prove an account of counter set-off, and make such 
 other defense as he might have made had an original action been 
 brought upon such set-of£; and upon the trial the arbitrators shall 
 ascertain the true state of indebtedness between the parties, and 
 the award shall be rendered accordingly. ' ' * 
 
 Under this statute an attorney at law, as such, has no authority 
 before or after the institution of a suit to make an agreement in 
 pais, to submit his client's cause to arbitration, though he may, 
 if his chents are adults, consent in open court to submit their 
 cause to arbitration; and, if they be adults, they will be bound 
 thereby.* 
 
 § 24. All matters pertaining to the submission should be 
 presented to the arbitrators — 
 
 The parties are bound to present every claim or demand em- 
 braced in their submission to the arbitrators, unless it is expressly 
 withdrawn before the hearing; and as to any claim or matter 
 thus embraced, and not so withdrawn, an award general in its 
 form is conclusive against the party having such claim or de- 
 mand in any future controversy.^ And unless the claims are so 
 presented to the arbitrators, they are not bound to pass upon 
 them, and their failure to do so, will not render the award bad.* 
 
 § 25. Power and authority of the arbitrators under rule of 
 court — 
 
 Where the matters in difference in a pending cause have been 
 made the subject of an agreement to arbitrate and such agree- 
 ment has been made and entered as a rule of court, only such 
 matters can be considered by the arbitrators as are pertinent to 
 the pleadings and issues in the suit.' 
 
 The arbitrators have no powers except those delegated to 
 
 ' Code. chap. 108, sec. 1. 
 
 ' McGinnis v. Curry, 13 W. Va. 29. See also Manlove v. Thrift, 5 
 Munf. 498. 
 
 3 Tennant, Adm'r, v. Divine, 24 W. Va. 387. * Idem. 
 
 5 Austin V. Clark and Crump, 8 W. Va. 236; Swann, Adm'r, v. Deem, 4 
 "W. Va. 368; Dunlap v. Campbell, 5 W. Va. 195. 
 
38 SQUITY PRINCIPLES. 
 
 them in the submission.^ Their award must, therefore, be limited 
 to such matters as are submitted to them. If they exceed the 
 limit of the submission, they act without authority; and in the 
 assumption of powers not delegated, they vitiate the award.^ 
 Thus, if there should be a submission under a rule of court in a 
 pending cause, and there are no pleadings, except those of the 
 plaintiff, no off-sets or defenses, offeredby the defendant to de- 
 feat, or in reduction of, the plaintiff's claim, can be regarded by 
 the arbitrators.' 
 
 § 26. Time within which an award must be made — 
 
 When the agreement for submission stipulates a time within 
 which the award is to be made, the power of the arbitrators 
 ceases at the expiration of this time.* But the parties may 
 waive that part of the articles of submission as to the time when 
 an award shall be made, by proceeding with the matters of arbi- 
 tration after the time specified in the agreement for the award 
 has expired, without raising any objections in this regard.' And 
 where an arbitration has been made a rule of court, the arbitra- 
 tors may correct a clerical mistake made in the award after the 
 time fixed for its rendition has passed; and for the correction of 
 such an error the court may recommit the award to the arbi- 
 trators.* But our statute provides that when a submission has 
 been entered as a rule of court, the term within which an award 
 is required to be made, may be by the court from time to time 
 enlarged.' 
 
 § 27. The revocation of a submission to arbitration — 
 
 Independent of statute, an agreement to submit to arbitration 
 is in general revocable by either party, at any time before an 
 award has been made. No stipulation in the agreement will be 
 sustained either at law or in equity as defeating this right, 
 so as to prevent the parties from having recourse to the courts.' 
 
 ' Dunlap V. Campbell, supra. " Idem 
 
 3 Swann's Adm'r v. Deem, 4 W. Va. 368;;Austin v. Clark and Crump, 8 
 W. Va. 236. 
 
 * I Am. & Eng. Enc. Law, 688. s Matthews v. Miller, 25 W. Va. 817. 
 
 « Henly v. Menefee, 10 W. Va. 771. i Code, chap. 108, sec. 2. 
 
 « Rison V. Moon, 91 Va. 384, 22 S. E. Rep. 165; Kinney v. B. & O. Em- 
 ployee's Relief Ass'n, 35 W. Va. 385, 14 S. E. Rep. 8; s. c. 15 L. R. A. 142 
 and note; Sidlinger v. Kerkow, 82 Cal. 42, 22 Pac. Rep. 932; Davis v. Max- 
 
ARBITRATION AND AWARD. 39 
 
 And it should be here stated that, where the covenant or agree- 
 ment to arbitrate is not collateral, as in the case of a covenant or 
 agreement to pay so much as arbitrators may award, or where ar- 
 bitration is by contract made the mode of ascertaining and de- 
 termining the amount of the recovery, leaving all other questions 
 and matters to the courts, and stipulating that no action shall be 
 sustainable until an award is made, by the weight of authority, 
 the covenant or agreement to arbitrate must be observed.^ But 
 it is otherwise under our statute when the award is7to become 
 the judgment of the court, which provides that no submission, 
 entered or agreed to be entered of record, in any court, shall be 
 revocable, by any party to such submission, without leave of such 
 court. ^ 
 
 § 28. No form necessary in submitting to arbitration un- 
 der an order of court — 
 
 Where it is desired to end the controversy by arbitration, mak- 
 ing the award the decree to be entered in the cause, no regard is 
 paid to the form or order effecting this intention of the parties. 
 It may assume the form of a simple order of reference to one of 
 
 -well, 27 Ga. 368; Paulsen v. Manske, 126 111. 72, 18 N. E. Rep. 275; Peters 
 V. Craig, 36 Ky. (6 Dana) 307; Brown v. Leavitt, 26 Me. (13 Shep.) 251; 
 Wright V. Cobleigh, 21 N. H. 339. 
 
 ' Flanders, Ins., p. 578; Wood Fire Ins., p. 148, sec. 430; Hamilton v. Liv- 
 erpool & L. & G. Ins. Co., 136 U. S. 255, 34 L. ed. 423; Smith v. Boston, 
 C. & M. R. Co., 36 N. H. 458; Delaware & H. Canal Co. v. Pennsylvania 
 Coal Co., 50 N. Y. 250; Nute v. Hamilton Mut. Ins. Co., 6 Gray, 182; Cava- 
 nagh V. Dooley, 6 Allen, 66; Campbell v. American Popular Life Ins. Co., i 
 McArthur, 246, 29 Am. Rep. 591; Berry v. Carter, 19 Kan. 135; Abeel v. 
 Hubbell, 52 Mich. 37, 17 N. W. Rep. 231; Lassar v. Baldridge, 32 Mo. App. 
 362; Wolff V. Liverpool & London & Globe Ins. Co., 50 N. J. L. (21 Vroom) 
 453, 14 Atl. Rep. 561; Davenport v. Long Island Ins. Co., 10 Daly, 535; Ball 
 V. Doud, 26 Or. 14, 37 Pac. Rep. 70; Irwin v. Schultz, 46 Penn. St. 74; Chapman 
 V. Rockford, 89 Wis. 572, 62 N. W. Rep. 422, 28 L. R. A. 405; Connecticut 
 Fire Ins. Co. v. Hamilton, 8 C. C. A. 114, Fed. Rep. 258; Richard on Insur- 
 ance, 182; Viney v. Bignold, L. R. 20 Q. B. Div. 172; Carroll v. Girard Fire 
 Ins. Co. 72 Cal. 297, 13 Pac. Rep. 863; Eichner v. Liverpool & L. & G. Ins. 
 Co., 29 N. Y. S. Rep. 411; Chippewa Lumber Co. v. Phoenix Ins. Co., 80 
 Mich. 116, 44 N. W. Rep. 1055; Pioneer Mfg. Co. v. Phcenix Ins. Co., 106 
 N. C. 28, 10 S. E. Rep. 1057; Gasser v. Sun Fire Office, 43 Minn. 315, 44 N. 
 W. Rep. 252; Hanover F. Ins. Co. v. Lowin, 28 Fla. 209, 10 South Rep. 297. 
 
 ' Code, chapter 108, section 2. See Stiringer et al. v. Toy et al., 33 W. Va. 
 S6; s. c. 10 S. E. Rep. 26. 
 
40 EQUITY PRINCIPI<ES. 
 
 the commissioners of the court. ^ And where an agreement is 
 made to arbitrate a matter with reference to which no suit is 
 pending, and the award to be made the judgment of the court, it 
 is not essential, to give the court jurisdiction, that the articles of 
 submission shall declare, in terms, that the submission shall be 
 entered of record.^ 
 
 § 29. The award — 
 
 The judgment of the arbitrators and the papers in which it is 
 written are called and known as the award;' and, to be valid, it 
 must be consonant to the submission, certain, of things possible 
 to be performed, not contrary to law or reason, and final.^ 
 
 Under this rule or test as to the validity of an award, the ar- 
 bitrators must settle all matters in difference between the parties 
 that have been referred to them under the submission; that is, 
 their award must leave no matters open to controversy which they 
 have the power to settle.* But the parties must bring before the 
 arbitrators the claims and matters embraced in the submission, as 
 the duty of the arbitrators does not require them to pass upon 
 matters not thus brought before them.* 
 
 When the arbitrators intend to decide' the case 'according to 
 law, but clearly and palpably mistake the law, their award will 
 be set aside, but if they mistake the law on a doubtful point, 
 although the court would have decided the law differently, the 
 award will not be set aside on the ground that the arbitrators may 
 have mistaken the law.' 
 
 When parties submit to arbitration their rights involved in law 
 and fact, they are understood to submit the facts to the arbitra- 
 
 ' Duff V. Core, 27 W. Va. 232; Bean v. Bean, 25 W. Va. 604. 
 
 = Tennant v. Divine, 24 W. Va. 387. 3 i Am. & Eng. Enc. Law. 647. 
 
 ■• Dunlap V. Campbell, 5 W. Va. 195; Bean v. Bean, 25 W. Va. 604; Ma- 
 thews V. Miller, 25 W. Va. 817; Fluharty v. Beatty, 22 W. Va. 699; Rogers 
 V. Carothers, 26 W. Va. 238; Pattou v. Baird, 42 N. C. 255; Purdy v. Dela- 
 ware, I Caines, 304; McKeen v. Oliphant, 18 N. J. Law, 442; Cauthorn v. 
 Courtney, 6 Gratt. 381 ; Pollard v. Lumpkin, 6 Gratt. 398; Pollock v. Suth- 
 erlin, 25 Gratt. 78; Willoughby v. Thomas, 24 Gratt. 521. "The doctrine 
 that awards must be mutual, in the sense that that term was formerly under- 
 stood, which was that the award would be void unless something was awarded 
 on both sides, has long since been declared to be exploded." i Bart. Ch. 
 Prac. 556. 
 
 5 Bean v. Bean, 25 W. Va. 604. * Tennant v. Divine, 24 W. Va. 387. 
 
 ^ Matthews v. Miller, 25 W. Va. 817. See Ross v. Overton, 3 Call, top page 
 268, marginal page 309; Smith v. Smith, 4 Rand. 95. 
 
ARBITRATION AND AWARD. 4 1 
 
 tors, to be decided on according to law; and if it appears upon 
 the face of the award that they grossly mistook the law, the 
 award will be set aside. ^ But where it appears that the parties 
 intended to submit a question of law alone to arbitration, the 
 decision of the arbitrators is binding, though made contrary to 
 law.^ If not, it would not be competent to parties to make a 
 valid submission of a point of law; for, however decided, no liti- 
 gation would be thus avoided.^ 
 
 An award is final when it finds a sum certain to be paid by one 
 of the parties to the other arising upon all the matters embraced 
 in the submission, although it does not require any release to be 
 executed of the debt upon its payment, as this results by mere 
 operation of law.* 
 
 In general terms, an award may be said to be final when it dis- 
 poses of the whole matter in controversy in an intelligible manner, 
 which has been submitted to arbitration.^ 
 
 § 30. The return of the award into court — 
 
 When there has been a submission to make the award the 
 judgment of the court, whether any previous record of the sub- 
 mission or a rule thereupon has been made or not, upon the re- 
 turn of the award, it shall be entered up as the judgment or de- 
 cree of the court, unless good cause be shown against it at the 
 first term after the parties have been summoned to show cause 
 against it.^ When the award has been returned, the law con- 
 templates that a rule shall be awarded, directed to the parties, to 
 show cause why the award should not be entered up as the judg- 
 ment or decree of the court. There are two methods of object- 
 ing to an award: by bill in equity, or, where the submission has 
 been made a rule of court, by showing good cause against it 
 when the parties have been duly summoned for that purpose.^ 
 
 And upon the return of the award, a rule must be issued to 
 show cause why it should not be entered up as the judgment of 
 the court.* 
 
 ' Smith V. Smith, 4 Rand. loi. = Idem. 3 Idem. 
 
 « Fluharty v. Beatty, 22 W. Va. 699; Doolittle v. Malcolm, 8 Leigh, 608. 
 See Brickhous v. Hunter, Banks & Co., 4 H. & M. 363. 
 
 s Akley V. Akley, 16 Vt. 450; Bums v. Hindman, 7 Ala. 531; Gordon v» 
 Tucker, 6 Me. (6 Greenl.) 247: Wood v. Shepherd, 2 Pat. & H. 442. 
 
 ' Code, chap. 108, sec. 3. 
 
 7 I Bart. Chanc Prac. 553, 557. " Idem, 557. 
 
42 BQUITY PRINCIPLES. 
 
 The award must be regarded as complete when it is signed and 
 published and ready to be returned to court. ^ But where the 
 submission is made to two arbitrators and an umpire to be se- 
 lected by them, the award is not invalid because signed by but 
 one arbitrator and the umpire.'' 
 
 When an award has been returned under a rule of court, the 
 court has no power over it, except to enter it as the judgment or 
 decree of the court, or to reject or refuse to so enter it, or perhaps to 
 recommit it;' and when judgment or decree has been entered upon 
 an award, it may be enforced by action at law or bill in equity, 
 or, if the award be for the payment of money, an execution may 
 issue thereon.* 
 
 ' 'The award should be returned to the court as soon as possible 
 after it is rendered, or if it is an agreement out of court it should 
 be delivered to the proper parties; but if, being in pursuance of 
 the submission, final in its character, it is read to the parties as. 
 and for an award, it is complete and conclusive, although not act- 
 ually delivered. ' ' ' 
 
 § 31. The sufficiency and validity of the award — 
 
 Our law, applying to awards made under it, provides: "No 
 such award shall be set aside, except for errors apparent on its 
 face, unless it appears to have been procured by corruption or 
 other undue means, or by mistake, or that there was partiality or 
 misbehavior in the arbitrators, or any of them. But this section 
 shall not be construed to take away the power of courts of equity 
 over awards. ' ' * 
 
 Under this provision of our statute, when an award is made 
 and is ready to be returned to court, the party against whom the 
 award has been rendered need not wait for its return to the court 
 in order to assail it, but may bring a suit in chancery at once to 
 set it aside.' 
 
 When it is sought to overthrow an award in any of the meth- 
 ods recognized by law, it must be remembered that presumptions 
 are not to be raised for the purpose of rendering it invalid, but it 
 
 ' Mathews v. Miller, 25 W. Va. 817. 
 
 ' Stiringer v. Toy, 33 W. Va. 86; s. c. 10 S. E. Rep. 26; Doyle v. Patter- 
 son, 84 Va. 800, 6 S. E. Rep. 138. 
 3 Stevenson v. Walker, 5 W. Va. 427. 4 Idem. 
 
 5 1 Bart. Ch. Pr. 557. « Code, ch. 108, sec. 4. 
 
 7 Mathews v. Miller, 25 W. Va. 817. 
 
ARBITRATION AND AWARD. 43 
 
 must be liberally construed so*as to give effect and operation to 
 the intent of tlie arbitrators, where it can be done, and every 
 reasonable intendment is to be made in its support.^ 
 
 No technical precision and certainty are necessary in an award. 
 If it be expressed in plain language, so that plain men acquainted 
 with the subject-matter can understand it, this is sufficient.^ So, 
 it is not fatal to an award, otherwise good; that it is not under 
 seal, though its submission requires it to be under seal;' nor on 
 account of the omission of the arbitrators to act upon a matter 
 submitted, unless such omission was to the prejudice of the party 
 complaining;* nor where a change has been made in the award 
 without warrant or authority of law by the arbitrators, or at the 
 instance of one of the parties interested, and the award so changed 
 is entered as the judgment of the court, and the award thus 
 altered does not prejudice the rights or interests of the party 
 complaining.* But it must not be understood that when an 
 award is made the arbitrators can change it to the detriment of 
 either party. This they cannot do, and if they attempt it, effect 
 may be given to it as it originally was.' 
 
 § 32. The setting aside of the award — 
 
 The statute, as we have just seen in the next preceding sec- 
 tion, enumerates the causes for which an award may be set aside, 
 when the submission therefor has been made a rule of court. 
 But the grounds here pointed out have, in the main, always been 
 sufficient to vitiate an award, so that we may assume that this 
 statute is merely declaratory of the common law in this regard,^ 
 inasmuch as courts of equity have always had and exercised 
 jurisdiction to interfere to set aside awards for fraud, accident, 
 partiaUty, misconduct or mistake of the arbitrators, and this 
 power is reserved to them in the law providing for submission on 
 the record.* 
 
 As to the error apparent upon the face of the award, that will 
 
 'Fluharty v. Beatty et al., 22 W. Va. 698; Armstrong v. Armstrong, i 
 l/cigh, 491; Richards V. Brockenbrough, i Rand. 449. 
 = Rogers v. Corothers, z6 W. Va. 238. 
 3 Mathews v. Miller, 25 W. Va. 817. 
 * Fluharty v. Beatty, 22 W. Va. 699. 
 
 5 Rogers v. Carothers, 26 W. Va. 238. ^ Idem. 
 
 ' Wheeling Gas Co. v. The City of Wheeling, 5 W. Va. 448, 492. 
 ^Idem; Mathews v. Miller, 25 W. Va. 817. 
 
44 EQUITY PRINCIPLES. 
 
 be treated as sufficient to annul it, such error must appear in the 
 award itself, or in that which forms a part of it or accompanying 
 it as to evidently be a part of it.^ 
 
 No calculations or grounds for an award, which are not incor- 
 porated into it or annexed to it at the time of delivery, are to be 
 treated as a part of it.^ 
 
 As to those grounds for impugning an award existing aliunde 
 the award itself, such as fraud, corruption or misconduct on the 
 part of the arbitrators, the court can look into the testimony 
 which was before them for the purpose of determining these 
 questions; and if the errors thus appearing are so gross and 
 palpable as to show fraud, corruption or misconduct on the part 
 of the arbitrators, the court will set aside the award.' It may^be 
 laid down as a general rule or principle that an award will be set 
 aside for corruption or other undue means, and for partiality 
 or misbehavior on the part of the arbitrators, or any of them; 
 and for after discovered evidence.* It will also be set aside for 
 fraud or misconduct in one or more of the parties to the arbi- 
 tration.^ But a court of equity will never interfere to set aside 
 an award for objections which might have been urged in a court 
 of law, and which the party failed to rely upon there, without a 
 good excuse for the omission.* 
 
 ' Wheatley v. Martin's Adm'r, 6 Leigh, 62, 70; 1 Bart. Ch. Pr. 557; 
 Taylor's Adm'r v. Nicholson, i. H. & M. 67; Pollard v. Lumpkin, 6 Gratt. 
 398. "The principle upon which an award may be set aside for error upon 
 its face is not in contravention of the general rule that parties cannot object 
 to the award because it is a part of the same rule founded on the same prin- 
 ciple. The award is set aside not because the judgment, when unreasonable 
 and against law, does not bind the parties, but on the ground that the arbitra- 
 tors have not given the judgment which they desired and intended to give. 
 Therefore, the court, carrying the true intention into effect, so far at least as 
 not to bind the parties by a decision contrary to that intention, will set 
 aside the award." 1 Bart. Ch. Pr. 558. 
 
 = Wheatley v. Martin's Adm'r, supra; Taylor's Adm'r v. Nicholson, supra. 
 
 3 Fluharty v. Beatty, 22 W. Va. 698. 
 
 4 I Bart. Ch. Pr. 560; Fluharty v. Beatty, 22 W. Va. 698; Boring v. 
 Boring, 2 W. Va. 297; Wheeling Gas Co. v. The City of Wheeling, 5 W. 
 Va. 448. 
 
 5 Head v. Muir & Long, 3 Rand. 122. 
 
 ' Head v. Muir & Long, 3 Raud. 122; Wheatley v. Martin's Adm'r, 6 
 Leigh, 62. 
 
ARBITRATION AND AWARD. 45 
 
 § 33. Illustrative cases of the sufficiency and insufficiency 
 of causes for setting aside an a'ward — 
 In the following instances the grounds or reasons were treated 
 as sufficient to annul the award: where one of the arbitrators has 
 acted as the adviser or partisan of the party appointing him;^ 
 where the arbitrators unreasonably refuse to hear competent 
 witnesses offered by either party; ^ where the arbitration bond, 
 which contains the submission, was procured by the fraud of one 
 of the parties, unless such fraud has been condoned; ^ misbehavior 
 in the arbitrators, though not amounting to corruption, yet re- 
 sulting in injustice to one of the parties; * where an action of 
 crim con. , being referred to arbitration by rule of court, the arbi- 
 trators refuse to hear testimony offered by the defendant im- 
 peaching the credit of plaintiff's witnesses, or touching the de- 
 portment of plaintiff's wife before her alleged seduction;^ where 
 the arbitrators received a paper as evidence without the knowl- 
 edge or consent of one of the parties to the submission, although 
 their opinions may have been foniied before it was received; * 
 where the arbitrators had a meeting, and the defendant asked a 
 continuance for an absent witness, which the arbitrators granted, 
 and then determined to have nothing further to do with the case, 
 and drew up a writing to that effect, which they communi- 
 cated to the parties. But afterwards the plaintiff had a private 
 conversation with one of the arbitrators, and prevailed on him to 
 resume the arbitration, and then gave notice to the defendant to 
 
 » Wheeling Gas Co. v. The City of Wheeling, 5 W. Va. 448. In this case 
 Maxwell, J., in the course of liis opinion, says: "I,ike jnrors impanneled 
 for the trial of a cause, or judges on the bench, arbitrators are invested, as 
 to the case submitted to them, with judicial functions, the rightful discharge 
 of which calls for, and presupposes, the most absolute impartiality. And a 
 judge, juror or arbitrator should not only possess the quality of impartiality 
 in fact, and have the conscience of it in the given case; he should moreover 
 sedulously shun all the possibilities even of insensible bias. And though, 
 therefore, arbitrators be nominated, one by each party, still they are not to 
 consider themselves as representing separate parties, and the advocates of 
 opposite sides, but called in to execute a joint trust, and to look impartially 
 at the true merits of the matter submitted to their judgment. Under no 
 circumstances can an arbitrator become an advocate. He is always bound 
 to exercise the highest degree of judicial impartiality, without the slightest 
 regard to the manner in which the charge has been placed upon him." 
 = Fluharty v. Beatty, 22 W. Va. 698. 3 Idem. 
 
 ♦ Lee V. Patillo, 4 Leigh, 436. s Ligon v. Ford, 5 Munf. 10, 
 
 " I Bart. Ch. Pr. 560, citing Jenkins v. Liston, 13 Gratt. 535. 
 
46 EQUITY PRINCIPI<ES. 
 
 appear at a certain time and place. The defendant appeared, but 
 protested against the arbitrators acting further, upon the ground 
 that they had divested themselves of all authority, and then left 
 them. They nevertheless went on and made up an award against 
 the defendant, without hearing his defense or having his defense 
 before them.^ 
 
 In the following instances, the grounds were held insufficient 
 to disturb the award: where a party interested in an arbitration 
 has been duly notified, but fails to appear and does not attend 
 the meetings of the arbitrators, and .their proceedings are had in 
 his absence;'' that the arbitrator, prior to his appointment, had 
 expressed an opinion as to the merits of the controversy, pro- 
 vided the party selecting him was not aware of such expression 
 of opinion;' where the arbitrators omit to act upon matters sub- 
 mitted to them, unless such omission is to the prejudice of the 
 complainant;* where the party complaining has himself been the 
 cause of misbehavior on the part of the arbitrators;^ where an 
 award, otherwise valid, adjudicates matters not embraced in the 
 submission;* a mere mistake of a date from which interest on a 
 particular debt is to run, obvious on the face of the award, the 
 party in whose favor it is consenting to its correction;' an error 
 of judgment on the part of the umpire in regard to the facts;' 
 where there is a submission to the arbitration of three or any 
 two, and only two join in the award, giving notice of the award 
 concluded and being about to be returned, to the third, who does 
 not join in it;' where there is a submission of a disputed account 
 to two arbitrators, or an umpire chosen by them, and there is an 
 award signed by such umpire and only one of the arbitrators, 
 although the other arbitrator, after all the items of the account 
 in controversy had been passed on by the three sitting together, 
 withdrew and refused to join in the award;^" the decision of a 
 matter in the absence of a witness, in a case where the com- 
 
 ' I Bart. Ch. Pr. 561. » Boring v. Boring, 2 W. Va. 297. 
 
 3 Wheeling Gas Co. v. The City of Wheeling, 5 W. Va. 448. 
 
 * Fluharty v. Beatty, 22 W. Va. 698. 
 
 s Rogers v. Corrothers, 26 W. Va. 238. 
 
 ' Taylor's Adm'r v. Nicholson, i H. & M. 67. 
 
 ' Bassett's Adm'r v. Cunningham, 9 Gratt. 684. 
 
 ' Idem; Morris, Overton et al. v. Ross, 2 H. & M. 408. 
 
 9 Wheatley v. Martin's Adm'r, 6 I/eigh, 62. 
 
 ™ Doyle V. Patterson, 84 Va. 800; s. c. 6 S. E. Rep. 138. 
 
ARBITRATION AND AWARD. 47 
 
 plainant had announced himself ready for trial, had never sum- 
 moned the witness to attend, though within reach, nor taken his 
 deposition, and had made no motion for a continuance on that 
 account.^ 
 
 § 34. Right of fiduciaries to submit matters in their charge 
 to arbitration — 
 
 "Any personal representative of a decedent, guardian of an 
 infant, committee of an insane person or trustee, may file his pe- 
 tition in the circuit court of the county in which he qualified or 
 was appointed, asking permission ,from such court to submit to 
 arbitration any suit or matter in controversy touching the estate 
 or property of such decedent, infant, insane person, or in respect 
 to which he is trustee. In which petition shall be stated the 
 facts upon which the petitioner seeks the permission of the court; 
 the court may in its discretion grant or refuse the prayer of the 
 the petition. If the petition is filed in good faith, and the peti- 
 tion is granted by the court, an order showing that permission to 
 arbitrate was granted shall be entered on the chancery order 
 book of the court, and the award made in any such case shall be 
 binding upon all the parties in interest, and shall be entered as 
 the judgment of the court in the same manner as other submis- 
 sions and awards are entered, unless set aside by the court. If 
 the petition is filed in good faith and there was no fault or neg- 
 lect on the part of the fiduciary, he shall not be responsible for 
 any loss sustained by an award adverse to the interests of his 
 ward, insane person, or beneficiary under any such trust.* 
 
 This statute is simply the announcement of the common-law 
 rule, that a fiduciary, as such, might submit to arbitration mat- 
 ters affecting the estate or trust represented by him; and that an 
 award made in pursuance of such submission would be binding 
 upon the parties to the same extent that it would be if made be- 
 tween parties acting in their individual rights.' 
 
 Before the enactment of this law, an administrator or an ex- 
 ecutor, and of course any other fiduciary, had a right to submit 
 any claim for or against his decedent's estate to arbitration; and 
 the award made in pursuance to such submission bound the 
 estate; but if injustice was thereby done the estate of the dece- 
 
 ' Canada v. Barksdale, 84 Va. 742; s. c. 6 S. E. Rep. 10. 
 
 = Code, chap. 108, sec. 5. 3 Wamsley v. Wamsley, 26 W. Va. 45, 47. 
 
48 EQUITY PRINCIPLES. 
 
 dent, the personal representative was chargeable therefor, as for 
 a devastavit} 
 
 The purpose of this statute was intended to protect the fidu- 
 ciary from liability, upon compliance with its provisions; so that 
 now, when a fiduciary files his petition in the circuit court of the 
 proper county for permission to submit a matter pertaining to his 
 trust to arbitration, properly setting forth the facts therein, and 
 the court authorizes a submission to arbitration, he shall not be 
 responsible for any loss sustained by an adverse award, if the 
 petition was filed in good faith and there was no fault or neglect 
 on the part of the fiduciarj'.^ 
 
 " Wheatley v. Martin's Adm'r, 6 Leigh, 62; Nelson's Adm'r v. Cornwell, 
 II Gratt. 724; Tennant v. Divine, 24 W. Va. 387, 391. 
 
 ' Wamsley v. Wamsley, 26 W. Va. 45, 47; Tennant v. Divine, 24 W. Va. 
 387, 391- 
 
ATTACHMENT. 49 
 
 CHAPTER VII. 
 
 ATTACHMENT. 
 
 ? 35. Origin and history of equity jiirisdiction in attachment cases. 
 
 36. The extent of equity jurisdiction in cases of attachment. 
 
 37. Whether jurisdiction in equity should be shown on the face of the 
 
 bill in attachment cases. 
 
 38. Of the grounds for an attachment. 
 
 39. Of the affidavit for an attachment. 
 
 40. Of the order and return of the attachment. 
 
 41. Of the levy of the attachment. 
 
 42. Of the garnishee in attachment. 
 
 43. Of the defense to the attachment. 
 
 44. Of the decree to be rendered upon the attachment. 
 
 § 35. Origin and history of equity jurisdiction in attach- 
 ment cases — 
 
 The remedy by attachment is derived from the custom of IvOn- 
 don, and is essentially the creature of statute, and being thus in 
 derogation of the common law, it must appear that all the re- 
 quirements of the statute have been strictly observed, to author- 
 ize the court to exercise its jurisdiction.^ 
 
 "The earliest attachment laws in Virginia related only to 
 debtors removing their property out of the state. In 1744, a pro- 
 ceeding by attachment in chancery was authorized against non- 
 residents, and this proceeding was confined to the equity courts 
 from that date until the adoption of the code of 1849, when, 
 without impairing the jurisdiction of courts of equity over equi- 
 table claims, provision was made for attachment at law for legal 
 claims. Subsequently the law was again changed so as to re- 
 store equitable jurisdiction over claims purely legal." * 
 
 Attachment being in the nature of a proceeding in rem does 
 
 ■ Am. & Eng. Enc. Law, 874; Delaplain v. Armstrong, 21 W. Va. 211; Alt- 
 meyer v. Caulfield, 37 W. Va. 847; s. c. 17 S. E. Rep. 409. 
 ' I Bart. Ch. Pr. 573, 574. 
 
 4 
 
50 EQUITY PRINCIPI,BS. 
 
 not belong to the general jurisdiction of courts of equity, but 
 only by virtue of particular statutes.' 
 
 Of the history of our attachment law, concerning the ju- 
 risdiction thereunder of a court of equity, Johnson, J., in the 
 case of Peyton V. Cabell,^ says: "In the code of 1819, chaptel 
 123, is 'an act reducing into one the several acts directing the 
 methods of procedure in courts of equity against absent debtors 
 and other absent defendants and for settling the proceedings on 
 attachments against absconding debtors.' Section i of this act 
 provides: 'That if in any suit which hath or hereafter shall be com- 
 menced for relief in eqnity in any superior court in chancery or 
 in any other court against any defendant or defendants, who are 
 out of this country and others within the same having in their 
 hands effects of or otherwise indebted to such absent defendant or 
 defendants, or against such absent defendant or defendants having 
 lands or tenements within the commonwealth, and the appearance 
 of such absentees be not entered and security given to the satisfac- 
 tion of the court for performing the decrees, upon affidavit that 
 such defendant or defendants are out of the country, or that upon 
 inquiry at his, her or their usual place of abode, he, she or they 
 could not be found so as to be served with process, in all such 
 cases such court may make any order and require surety, if it 
 shall be necessary, to restrain the defendants in this country from 
 paying, conveying away or secreting the debts by them owing to 
 or the effects in their hands of such absent defendant or defend- 
 ants, and for that purpose may order such debts to be paid, and 
 effects to be delivered to the said plaintiff or plaintiffs, upon their 
 
 ■ I Bart. Ch. Pr. 574. 
 
 A recent author ( i Shinn on Attachment and Garnishment, g 7 ) says : ' 'The 
 remedy by attachment is, except in a very few states, wholly other than an 
 equitable proceeding. It is a special remedy at law, belonging exclusively 
 to a court of law, and pursued in conformity with the terms of law. At- 
 tachment for the collection of debts is essentially legal, and not equitable in 
 its nature and procedure, and necessitates a trial at law upon legal issues. 
 And if, for any cause, the remedy it affords be not full and complete, a court 
 of equity cannot cure the deficiency. Nor can a court of equity extend it 
 to cases for which the statute has not provided." 
 
 An examination of this and the next section will show the extent of the 
 jurisdiction in equity in our state, and that it is, in most cases, concurrent 
 with that of law, but is altogether by reason of the statute conferring it in 
 express terms upon the court of equity. 
 
 = 25 W. Va. 540. 
 
ATTACHMENT. 51 
 
 giving security for the return thereof to such persons and in such 
 manner as the court shall direct. ' ' ' 
 
 Section ii, chapter 151, of the Code of 1849 declares: "When 
 any person claims to be entitled in equity to any money or prop- 
 erty from any person against whom and for which an attach- 
 ment might be sued out of a clerk's office, if the claim were re- 
 coverable at law," etc., he could have an attachment in equity. 
 
 In the acts of 1852, by chapter 95, section i, this section was 
 amended to read: "A claim to any debt, or to damages for 
 breach of any contract against a person who is not a resident of 
 this state, but who has estate or debts due him within the same, 
 may, if such claim exceed $20.00 exclusive of interest, be main- 
 tained in any court of equity for a county or corporation in which 
 there may be any such estate or a defendant owing any debt to such 
 nonresident. When a person has such claim, or when a person 
 claims to be entitled in equity to any money or property from 
 a person against whom and for which an attachment might 
 be sued out of a clerk's office, if the claim were recoverable at 
 law, there may be an affidavit according to the nature of the 
 case, conforming as near as its nature will admit, to what is speci- 
 fied in previous sections, ' ' etc. 
 
 This is the same language found in section 11 of chapter 151 
 of the Code of i860. I know of no change until the acts of 
 1867, when the first clause of section i of chapter 151 of the Code 
 was amended as follows: "When a suit is about to be or is 
 instituted for the recovery of any debt or damage arising out of 
 any contract, or to recover damages for any wrong, the plaintiff 
 may have an order of attachment against the property of the de- 
 fendant on filing with the clerk of the court his affidavit, ' ' etc. 
 
 This section is substantially the same as section i, chapter 106, 
 of the Code of 1868, and clearly does not confer jurisdiction in 
 equity of a purely legal demand. This code took effect, April i, 
 1869, and in less than two years thereafter, on February 27, 1871, 
 the legislature amended section i of chapter 106 of the Code, 
 and declared that "a claim, whether legal or equitable, for any 
 debt or liability arising out of contract against a foreign cor- 
 poration or against a nonresident may be sued for and recovered 
 in a court of equity, and an attachment may issue," etc. Acts 
 of 1871, chapter 136. This act in the clearest manner restores 
 the jurisdiction of the equity court in attachment cases to de- 
 mands purely legal. And so the law remained for more than 
 
52 SQUITY PRINCIPLES. 
 
 eleven years, but apparently the same influences that were at 
 work in the legislatures of 1867 and 1868 were again present in 
 the legislature of 1882; and, although the practice had been so 
 long settled, the legislature again changed it, and in chapter 
 106, amending and re-enacting chapter 106 of the Code, re-en- 
 acted the first clause of chapter 106, and in a subsequent part of 
 the section provided that "such attachment may be sued out in a 
 court of equity for a debt or claim legal or equitable not due upon 
 any of the grounds aforesaid," but the affidavit in such case 
 must show when it will become due. Thus matters stood until 
 the recent session of 1885, when a different policy prevailed, and 
 the legislature, by chapter 38, again amended section i of chap- 
 ter 106 of the Code, as amended by 106 of the acts of 1882, and 
 declared that "such attachment may be sued out in a court of 
 equity for a debt or claim legal or equitable, whether the same 
 be due or not upon any of the grounds aforesaid. ' ' 
 
 § 36. The extent of equity jurisdiction in cases of attach- 
 ment — 
 
 An attachment may be sued out in a court of equity upon any 
 of the grounds enumerated in the statute for a debt or claim, 
 legal or equitable, whether the same be due or not, but the affi- 
 davit in case the claim or debt be not due must show when the 
 debt will become due; ^ but an attachment can not be sued out 
 against a foreign corporation, nor against a nonresident defend- 
 ant for a debt not due, unless it is shown by the affidavit that 
 such defendant was a resident of this state when the debt was 
 contracted, and that the plaintiff believed he would remain a 
 resident of this state at the time he gave the defendant credit.* 
 Under this statute, equity has jurisdiction of actions for the re- 
 covery of damages arising out of wrongs, and, hence, in cases of 
 unliquidated damages.' 
 
 An examination of this statute * will show that the jurisdiction 
 of a court of equity in two instances is exclusive: First, where 
 the claim sought to be enforced is purely an equitable one; and 
 second, where the demand sued on is not due.^ 
 
 • Code, chap. 106, sec. i. ' Idem. 
 
 3 McKinsey v. Squires, 32 W. Va. 41; s. c. 9 S. E. Rep. 55. But this is 
 because of the statute conferring equity jurisdiction in all cases. 
 
 * Code, chap. 106, sec. i. 
 
 5 In the absence of this statute, a court of equity has 'no jurisdiction of a 
 
ATTACHMENT. 55 
 
 §37. Whether jurisdiction in equity should be shoAvn on 
 the face of the bill in attachment cases — 
 
 It would seem, on principle, that in all those instances wherein 
 suit is brought to enforce a purely legal demand in equity, that 
 the bill should aver such facts as to show on its face that the 
 law of attachment has been invoked in aid of the court's juris- 
 diction. 
 
 This was done in the case of Coleman v. Waters et al.,' and to 
 the bill filed in that suit a demurrer was overruled. In the case 
 of O'Brien et al. v. Stephenson et al.,^ however, it is said that a 
 demurrer to a bill against an absent defendent will not lie for the 
 failure to aver that an attachment had been issued; because fhe 
 statute in terms provides that this process may issue after the in- 
 stitution of the suit. 
 
 But be this as it may, the courts of this state and Virginia, 
 hold that it is not necessary to aver in the bill the issuance of an 
 attachment in order to give a court of equity jurisdiction of a 
 purely legal demand;' nor need the bill pray for an attachment, 
 for if it states a good case for one, the affidavit may afterwards 
 be made and the attachment sued out pending the cause.* 
 
 § 38. Of the grounds for an attachment — 
 
 The different grounds for an attachment are all set out in 
 the statute, and are as follows: 
 
 First. That the defendant, or one of the defendants, is a for- 
 eign corporation, or is a nonresident of this state; or. 
 
 Second. Has left, or is about to leave the state, with intent to 
 defraud his creditors: or. 
 
 Third. So conceals himself that a summons cannot be served 
 upon him; or, 
 
 purely legal demand. Livey v. Minturn et al., 30 W. Va. 554; s. c. 4 S. E. 
 Rep. 451; Peyton v. Cabell, 25 W. Va. 540. 
 
 ' 13 W. Va. 278. ' II Gratt. 610. 
 
 3 Taylor's Ex'rs v. Cox, 32 W. Va. 148; s. c. 9 S. E. Rep. 70; Cirode v. 
 Buchannan, 22 Gratt. 205. 
 
 * I Bart. Ch. Pr. 584. In drafting a bill in a suft in chancery on a purely 
 legal demand in an attachment proceeding, it is suggested that such 
 allegations be made in the bill as to bring the case within the purview of 
 the attachment law, and to also allege the issuance of an attachment, if such 
 be the fact at the time the bill is filed, and if not, then to allege the fact of the 
 plaintiff's intention to obtain an attachment, so as to thus clearly support 
 the court's jurisdiction. 
 
54 EQUITY PRINCIPLBS. 
 
 Fourth. Is removing, or is about to remove, his property (or 
 the proceeds of the sale of his property, or a material part of such 
 property, or proceeds) out of this state, so that process of execu- 
 tion on a judgment or decree in such action or suit, when it is 
 obtained, will be unavailing; or, 
 
 Fifth. Is converting, or is about to convert, his property, or a 
 material part thereof, into money or securities, with intent to de- 
 fraud his creditors; or, 
 
 Sixth. Has assigned or disposed of his property, or a material 
 part thereof, or is about to do so, with intent to defraud his 
 creditors; or. 
 
 Seventh. Has property or rights in action, which he con- 
 ceals; or. 
 
 Eighth. Fraudulently contracted the debt or incurred the 
 liability for which the action or suit is about to be or is brought.^ 
 
 (a. ) Under the clause of the law authorizing an attachment 
 against the property of a nonresident debtor, we must not con- 
 found "domicile"' with "residence," as these two terms have 
 different meanings when used with reference to the statute giv- 
 ing a remedy by attachment against nonresidents.* 
 
 In the case of Andrews v. Mundy, cited in the foot-notes, Lu- 
 cas, J., in the course of his opinion, speaking to this point, says: 
 "In order to constitute domicile, two things must concur — the 
 fact of residence, and the intention of remaining: but, in order 
 to sustain an issue that a party is not a nonresident, he has only 
 to establish the fact of actual residence, under such concomitant- 
 circumstances as make it entirely practicable to serve him with 
 process, and to reach his property according to the course of the 
 common law.' 
 
 » Code, chap. io6, sec. i. 
 
 ' Ringgold V. Burley, 59 Am. Dec, note, p. 112; Alston v. Newcomer, 42- 
 Miss. 187; Risewick V. Davis, 19 Md. 82; Bartlett v. New York, 5 Sandf. 44- 
 Long V. Ryan, 30 Gratt. 720; Monroe v. Williams & Turley, 37 S. C. 81 • 
 s. c. 19 L. R. A. '665; Andrews v. Mundy, 36 W. Va. 22; s. c. 14 S. E. 
 Rep. 414. 
 
 3 It is laid down in this case that if a man's family has been removed to this 
 state; if his business, means and property have been brought here- if he is 
 engaged in business, and dwells here, and his business engagements in this, 
 state are such as to render his stay wholly uncertain and indefinite as to du- 
 ration—it would seem from the authorities that, within the purview of the 
 attachment law, he is not a nonresident of the state. In deducing this con- 
 clusion, the court has followed the case of Long v. Ryan, 30 Gratt. 718. 
 
ATTACHMENT. 
 
 55 
 
 Our supreme court, in the case just quoted from, has laid 
 down the true rule for determining the question of nonresidence 
 in attachment cases. It is that, where a party can show such a 
 residence as to make it practicable to serve him with the ordinary 
 process of the court and to reach his property with the usual 
 common-law methods, he can not be proceeded against by the 
 remedy of foreign attachment.^ 
 
 A mere temporary residence in the state where the attachment 
 issues will not constitute a debtcw: a resident, especially where his 
 family resides in another state, or where he has declared his in- 
 tention to reside elsewhere, or voting in another state is shown, 
 or that he has not such a place of abode as that he could be 
 served with a summons in a suit.^ 
 
 Removal from the state with the intention not to return con- 
 stitutes nonresidence.' And a foreign corporation will be treated 
 as a nonresident, though doing business in this state with an 
 agent duly appointed in pursuance of law to accept service on its 
 behalf.* 
 
 " Andrews v. Mundy, 36 W. Va. 22; s. c. 14 S. E. Rep. 414; Hanson v. 
 Graham, 82 Cal. 631; s. c. 7 L. R. A. 127; Munroe v. Williams & Turley, 37 
 S. C. 81; s. c. 19 L. R. A. 665; Bowers v. Ross, 55 Miss. 213; Egan v. Lums- 
 den, 2 Disney (Ohio), 168. 
 
 ' See the elaborate note to the case of Monroe v. Williams & Turley, 19 L. 
 R. A. 665-668. 
 
 3 Idem, citing, among numerous other cases, Moore v. Holt, 10 Gratt. 284. 
 Proof that a defendant declared his intention of leaving the state and set- 
 tling in another, and that he actually left, is sufficient to justify a suit against 
 him as a nonresident, though he returned in a month after the bill was 
 filed. Farrow V. Barker, 3 B. Mon. (Ky. ) 217. 
 
 If a party's usual place of abode is in another state, and he comes into- 
 this state without any intention to change his permanent place of residence 
 of himself and family, and merely on temporary and transient business, he 
 will not thereby cease to be a nonresident of the state within the meaning of 
 the atachment law. Green v. Beckwith, 38 Mo. 384. 
 
 A debtor does not become a nonresident, so as to subject him to a foreign 
 attachment, by leaving his place of abode in this state and going to another 
 state to seek a new residence. Pfoutz v. Comford, 36 Pa. St. 420. 
 
 An attachment against one as a nonresident cannot be upheld by the fact 
 that his domicile is in a foreign state, if for several months he has, to plain- 
 tiff 's knowledge, resided on his plantation in the state where the suit is 
 brought and intends to be there a few months longer, and then after a tem- 
 porary absence make it his permanent abode, and no difficulty is experienced 
 in serving process on him there. Brown v. Crane, 69 Miss. 678. 
 
 « Savage v. People's Building, Loan and Savings Ass'n, 45 W. Va. 275, 31 
 S. E. Rep. 991. 
 
56 EQUITY PRINCIPI,ES. 
 
 An attachment issued on the ground of the nonresidence^ of 
 the defendant should not be discharged upon denial of such non- 
 residence, where numerous and undisputed voluntary acts and 
 declarations of the defendant, tending to show his nonresidence 
 during all the time covered by the inquiry, are shown. ^ 
 
 The property of a preacher is subject to attachment in North 
 Carolina on the ground of nonresidence, where he has been 
 preaching for several years in another state, even though he 
 always regarded North Carolina as his home, and visited 
 there once a year, and intended ultimately to return and live 
 there.* 
 
 (5) The second ground of attachment exists where the debtor 
 has left the state, or is about to do so, with intent to defraud his 
 creditors. This provision of our attachment law corresponds in 
 some of its main features to what is known in many of the states 
 as "the absconding debtor act," as an examination of the adjudi- 
 cations will clearly show.' Thus, the mere fact that the defend- 
 ant has left the state is not ground for an attachment; the intent 
 to abscond must appear.* That is, the departure must have been 
 made with the intent to defraud the defendant's creditors.^ 
 
 Under a statute like this of ours, two concomitant facts must 
 exist — ^that the defendant has left the state or is about to do so, 
 and the intent to defraud his creditors.^ 
 
 When the defendant has actually left the state, there need be, 
 and rarely is, any controversy or dispute as to the first of these 
 
 " Quebec Bank v. Carroll (S. D.), 47 N. W. Rep. 397. 
 
 " Garden v. Garden, 107 N. G. 214; s. c. 12 S. E. Rep. 197. 
 
 3 Fitch V. Waite, 5 Gonn. 117; Stanton v. Holmes, 4 Day (Gonn.), 000; 
 House V. Hamilton, 43 111. 185; Nutter v. Gonnet, 3 B. Mon. (Ky.) 199; 
 Field V. Adreon, 7 Md. 209; Rieswick v. Davis, 19 Md. 82; Ross v. Clark, 32 
 Mo. 296; Branson v. Shinn, 13 N. J. I,, (i Green) 250; City Bank v. Merritt, 
 Id. 131; Moore v. Rogers, 3 Jones (N. C.) L. 90; Moss v. People, 6 Jones (N. 
 G.) L. 140; Moffitt V. Burgess, 8 Id. 342; Jewel v. Ho-we, 3 Watts (Pa.), 144; 
 Wray V. Gilmore, i Miles (Pa.), 75; Austin v. Palmer, 2 Vt. 489; Baxter v. 
 Vincent, 6 Vt. 614; I,each v. Cook, 10 Vt. 239; Bryant v. Simoneau, 51 111. 
 324; Myers v. Farrell, 47 Miss. 281; Klepper v. Powell, 6 Heisk. (Tenn.) 
 503. 
 
 « Branson v. Shinn, supra; City Bank v. Merritt, supra. 
 
 s Moore v. Rogers, supra; Moss v. People, supra; Moffitt v. Burgess, 
 supra; Jewel v. Howe, supra; Wray v. Gilmore, supra; Love v. Young, 69 
 N. G. 65; Ex parte Robinson, 21 Wend. 672; Fitch v. Waite, supra; Sloufier 
 V. Niple, 40 Md. 477. 
 
 ' I Shinu on Attachment and Garnishment, sec. io6. 
 
ATTACHMBNT. 57 
 
 essential elements of this ground of attachment; but when he is 
 about to do so, serious dispute or contention maj'^ arise, and the 
 meaning of the words "about to leave" may become a question 
 of much importance.! The word "about" must be taken in its 
 common acceptation. It implies that the defendant is soon to do 
 the act complained of; but not necessarily that he is intending to 
 leave immediately, for this would be such a restriction upon the 
 remedy as to practically defeat it in many cases, perhaps, as a 
 means of collecting a debt or claim. ^ If the purpose to remove 
 exists, and may be carried out in one, two, three, or even several 
 weeks, and the object is to hinder, delay, or defraud creditors, 
 the attachment may issue.' And this purpose, like all other 
 motives, may be inferred from the speeches, acts and conduct of 
 the party, although his movements may not be characterized by 
 speed or haste.* 
 
 To use the language of a recent author,* "the general intent, 
 then, of all the statutes in which the word 'about' appears is: 
 If, in the first class of cases, the debtor has the present intention 
 of performing the act, and if, in the second class, the debtor's 
 purpose is the same, coupled with the design that his creditors 
 may not obtain the satisfaction of their debts, his creditors are enti- 
 tled to a writ of attachment. Further than this, any attempt to 
 fix a definite rule as to any time within which the injury is to be 
 done, would, it is said, be hurtful in practice and might defeat 
 the remedy in meritorious cases. Each case must be judged by 
 its own peculiar circumstances. ' ' 
 
 The most important question with which the courts and practic- 
 ing lawyers have to do, in the matter of attachments under the sec- 
 ond, fifth and sixth grounds of the attachment law, is the one which 
 relates to the intent of the debtor to defraud his creditors. What 
 is said here, will to a limited extent, therefore apply to each of 
 these clauses of the statute. 
 
 ' Idem. 
 
 " Idem; Myers v. Farrell, supra; Dueber Watch Case Mfg. Co. v. Young, 
 155 111. 226, 40 N. E. Rep. 582. 
 
 3 Elliott V. Keith, 32 Mo. App. 579; Jewel v. Howe, 3 Watts (Pa.), 144; 
 Wray V. Gilmore, i Miles (Pa.), 75. 
 
 « I Shinn on Attachment and Garnishment, sec. 106; Myers v. Parrel, 
 supra; Dueber Watch Case Mfg. Co. v. Young, 155 111. 226, 40 N. E. Rep. 
 582. 
 
 s I Shinn on Attachment and Garnishment, sec. 106. 
 
58 BQUITY PRINCIPtBS. 
 
 A prime principle applying here, it is said, as laid down by- 
 numerous decisions, is that there must exist, in order to uphold 
 an attachment, an actual intent to defraud on the part of the 
 debtor, as contradistinguished from constructive fraud which 
 arises from mere operation of law.-' On the other hand, there 
 are a number of decisions to the effect that where an act is 
 denominated by the law as fraudulent, this is sufficient to sus- 
 tain an attachment, that is, that constructive fraud alone will 
 authorize the writ.* 
 
 While our own courts have not passed upon this question, so 
 far as we have been able to ascertain, we incline to the opinioa 
 that in order to maintain the attachment where an intent to de- 
 fraud enters into the case, such intent must actually exist, and 
 must not be mere constructive fraud.' 
 
 The act charged to be fraudulent must have existed before the 
 making of the affidavit or at the time it is made.* 
 
 {c. ) The concealment which will justify an attachment is but a 
 phase of absconding, and must be with the intent to defeat or de- 
 lay the claims of creditors by avoiding the service of process.* 
 Under this branch of the law, it is not necessary that process 
 should be first issued, or that an attempt should be made by an 
 officer to find the debtor, in order to authorize the issuing of an 
 order of attachment.^ 
 
 ' Weare Commission Co. v. Druley, 156 111. 25, 30 X,. R. A. 465; Spencer 
 V. Deagle, 34 Mo. 455; Holbrook v. Peters & M. Co., 8 Wash. 344; McPike 
 V. Atwell, 34 Kan. 142; Seidentopf v. Annabil. 6 Neb. 524; Stanley v. Suth- 
 erland, 54 Ind. 539; ■ Fitzpatrick v. Plannagan, io5 U. S. 648, 27 L. ed. 211; 
 Frankhauser v. EUett, 22 Kan. 127, 31 Am. Rep. 161; Seckendorf v. 
 Ketcham, 67 How. Pr. 526; Wadsworth v. Laurie, 164 111. 42, 45 N. E. Rep. 
 435; First Nat. Bk. v. McMillan (S. D.), 68 N. W. Rep. 537. 
 
 = Whedbee v. Stewart, 40 Md. 414; Farrow v. Hayes, 51 Md. 498; Cissell 
 T. Johnson, 22 Wash, L. Rep. 730; Eckman v. Munnerlyn, 32 Fla. 367; Pot- 
 ter V. McDowell, 31 Mo. 62; Kritzer v. Smith, 21 Mo. 296; Reed v. Pelle- 
 tier, 28 Mo. 173. 
 
 3 Shinn, Attachm. & Garnish., *iii. See also Lord v. Wirt, 96 Mich. 
 415, 56 N. W. Rep. 7. 
 
 * Idem; Bumberger v. Gersen, 24 Rep. 257. 
 
 5 1 Shinn Attach. & Garnish, sec. 89; Dunn v. Salter, i Duv. (Ky.) 342. 
 Concealment may be accomplished by secreting one's self upon his own 
 premises, or by departing secretly to a more secure spot, either in or out of 
 the county or state of his residence. Dunn v. Salter, supra. 
 
 « North V. McDonald, 1 Biss. (111.) 57. 
 
ATTACHMBNT. 59 
 
 If a party secretes himself to avoid an arrest for a criminal of- 
 fense so that the ordinary process of the courts cannot be served 
 upon him, he has brought himself within the purview of this 
 provision of the attachment law.^ 
 
 One who leaves the place of his residence to avoid service of 
 process, and requires false information to be given of his move- 
 ments, "conceals himself so that process cannot be served upon 
 him," within the meaning of the attachment law.* But an at- 
 tachment will not be sustained on the ground that the defendant 
 keeps himself concealed, with intent to avoid the service of 
 summons, when it only appears that he was not found at his 
 place of business by the agent of the plaintiff on two successive 
 days.^ And it is a good defense to an alleged concealment to 
 show that it was in the neighborhood generally known where the 
 debtor had gone, and the knowledge could have been obtained by 
 the creditor upon inquiry.* 
 
 (a?) The removal of property, or the proceeds of the sale 
 thereof, out of the state must be such that process of execution 
 on a judgment or decree, when obtained, will be unavailing. 
 Hence, the mere taking of property out of the state for a tempo- 
 rary purpose does not constitute a removal as a ground of attach- 
 ment.^ But a debtor who removes his property, or a part thereof, 
 from the state for the purpose of converting it into money, not 
 having or leaving sufficient property in the state subject to exe- 
 cution to pay his creditors, is liable to attachment, whether his 
 intent in doing so is fraudulent or not.^ 
 
 (^) The conversion of property, or a material portion thereof, 
 into money or securities, must be with the intent to defraud. 
 
 As to what constitutes an intent to defraud has been consid- 
 ered, as applicable to our attachment law,^ so that we shall here 
 consider what constitutes a conversion within the meaning of 
 
 ' Malone v. Handley, 8i Ala. 117. But see Evans v. Saul, 8 Martin, 247. 
 
 ' I Shinn Attachm. & Garnish. § 89. , ' Idem. * Idem. 
 
 s Friedlander v. Pollock, 5 Coldw. (Tenn.) 490; Warder v. Thrilkeld, 52 
 Iowa, 134. 
 
 ' Stephenson v. Sloan, 65 Hiss. 407; s. c. 3 So. Rep. 342. The shipping 
 by an insolvent debtor of property to a consignee without the state, for the 
 purpose of raising a fund against which he may draw for the payment of 
 debts due to persons other than the consignees, is such removal of his prop- 
 erty without the state as to subject him to an attachment at the suit of other 
 creditors. Crow v. Lemon & G. Co., 00 Miss. 000; s. c. n So. Rep. no. 
 
 ' Artie, pp. 57, 58. 
 
6o EQUITY PRINCIPLES. 
 
 this Statute. The conversion must be into money or securities, 
 to come within the purview of the law. 
 
 The word ' 'money' ' is a generic term, and may mean not only 
 legal tender coin and currency, but also any other circulating 
 medium, or any other instruments or tokens in general use in the 
 commercial world as the representatives of value. ^ The word 
 "securities," as here used, evidently means choses in action, as 
 one of the definitions of security, as given by Webster, is an evi- 
 dence of debt, as a bond, a certificate of stock, and the like, as 
 government securities.^ So that a conversion into real estate, 
 live stock, farm implements, store goods, household furniture, 
 and other personal property of like character, is not covered by 
 this clause of the statute. 
 
 To convert has the primary signification of making a change 
 of the form or substance of a thing; but its meaning here is evi- 
 dently to change the character of one's effects into money and 
 personal securities, for the purpose of more readily appropriating 
 the result or the proceeds thereof to one's own use, and with the 
 intent so to do, and in this manner divert one's resources from 
 the payment of his debts or the claims and demands of his 
 creditors. 
 
 (/) The sixth ground of attachment is that relating to the 
 assignment or disposal of the party's property with intent to de- 
 fraud his creditors. The intent to defraud, as ground for an 
 attachment, can only be shown by the acts of the debtor upon 
 which the creditor bases his belief, and if such acts are of that 
 character to justify the belief in the ground for the order of at- 
 tachment, the proceeding will be sustained.' 
 
 The intent to defraud, as we have already seen,* must exist at 
 the time of the transfer or conveyance of the property.^ 
 
 ' State V. McFetridge, 84 Wis. 473, 20 L. R. A. 223; Black's Law Die, tit. 
 "Money," 784. 
 
 'Webster's Die, tit. "Security." 
 
 3 Steinhardt v. Leman, 41 La. Ann. 835; s. c. 6 So. Rep. 665. 
 
 * Ante, p. 58. 
 
 5 Baker v. Naglee, 82 Va. 878; s. c. I ,S. E. Rep. 191, Kyle v. Harveys, 25 
 W. Va. 716; Harden v. Wagner, 22 W. Va. 357. 
 
 An exchange by a merchant 01 his whole stock in trade for wild land of 
 questionable value and considerably incumbered, at a time when he is in- 
 debted in a considerable sum for goods, is sufficient to authorize an attach- 
 ment. Robinson Notion Co. v. Ormsby, 33 Neb. 665; s. c. 50 N. W. Rep. 
 952- 
 
ATTACHMENT. 6 1 
 
 The statute uses the two words, " assigned or disposed;" and 
 while their meaning is similar, the latter term alone, when used 
 as a ground of attachment, covers such transfers as pledges, gifts, 
 pawns, bailments and all other dispositions of property which 
 may be effected by mere deliverj^ without the use of any writing, 
 but includes no species of conveyance.^ The former term is al- 
 lied to disposal, secretion or conveyance of property and there- 
 fore embraces written transfers and formal conveyances thereof.^ 
 While the statutory language here used is in the plural with 
 reference to the intent to defraud, still if the debtor makes a con- 
 veyance for the purpose of defrauding any particular creditor, 
 this will justify an attachment by any other creditor. ' 
 
 An attachment wiU not be authorized under this clause of the 
 law simply because a general assignment is made by the debtor, 
 to prevent a sacrifice of his property;* and the mere fact that the 
 debtor admitted that he was running his business as an agent, so 
 as to save trouble with his creditors, will not support an attach- 
 ment;* and where defendant owned a brick block, which was en- 
 cumbered, and mortgaged her home, applying the proceeds 
 therefrom together with those of a stock of goods, to reduce the 
 encumbrance of the brick block, though insolvent, this does not 
 justify an attachment;* and the sale of property to obtain money 
 to procure necessaries for the debtor's family does not afford 
 sufficient ground for an attachment;^ so the sale at a fair price of 
 property for the payment of the defendant's debts and the pro- 
 ceeds thereof so applied, except an inconsiderable sum, will not 
 sustain an attachment;* and the mere fact that a person, largely 
 indebted, sold goods to his brother, doing business in another 
 state, does not raise a presumption of fraud;' nor will the reck- 
 less sale of goods by an employe, without the knowledge of 
 the employer, constitute a ground for an attachment.'" But 
 where a debtor in embarrassed circumstances gives a mortgage 
 
 ' 1 Shinn, Attachm. & Garnish, g m. * Idem, \ ii8. 
 
 3 Sherill V. Bench, 37 Ark. 560. 
 
 ■• McPike V. Atwell, 34 Kan. 142, 8 Pac. Rep. 118. 
 
 s Claussen v. Pultz, 13 S. C. 476. 
 
 « Palmer v. Hawes, 80 Wis. 474, 50 N. W. Rep. 341. 
 
 ^ Estes v. Fry, 22 Mo. App. 80. 
 
 ' Cuendet v. Lahmer, 16 Kan. 527; Knapp v. Joy, 9 Mo. App. 47. 
 
 9 Marx V. Strauss, 93 Ala. 453, 9 So. Rep. 818. 
 
 »° Myers v. Whiteheart, 24 S. C. 196. 
 
62 EQUITY PRINCIPLES. 
 
 ■without consideration, an attachment may be issued;^ and so, 
 too, where a mortgagor or grantor in a deed of trust, is permitted 
 to retain possession of the property and to sell the same, in any 
 other capacity than that of agent of the mortgagee or cestui que 
 trust, tends to show such bad faith and fraud as will support an 
 attachment;" so an attachment may be issued and will be sus- 
 tained, where it appears that after its issuance, the defendant 
 stated that he had been making arrangements to transfer his 
 property to his mother, to whom he owed nothing, for the pur- 
 pose of preventing plaintiff from getting anything, to whom he 
 was indebted, and that he had made his creditors come to his 
 terms once, and would have done so again, but for the attach- 
 ment.' 
 
 The disposition of property by a debtor, in the due course of 
 business, though insolvent, or financially embarrassed, consti- 
 tutes no ground for an attachment, in the absence of an actual 
 intent to defraud.* 
 
 {g) The bare concealment of the debtor's property or rights in 
 action will authorize an attachment. 
 
 This statute does not make the concealment of the debtor's 
 property or choses in action, to depend upon an intent to defraud, 
 to justify an attachment. The only question here is that which 
 constitutes concealment within the meaning of this clause of the 
 statute. This is a broad, plain statute, and is not to be con- 
 founded with the third and fourth clauses of the attachment law, 
 which have already been noticed.' 
 
 In most of the states, so far as our examination extends, the 
 statutes contemplate a fraudulent concealment, so that two factors 
 enter into the question under such laws: the fact of the conceal- 
 ment of the property and that of fraudulent intent; and it does 
 seem a little anomalous that a party may sue out an attachment 
 against a party on the ground alone that he makes concealment 
 
 ' Taylor v. Eahuke, 26 Kan. 132. 
 
 ° Leser v. Glasser, 32 Kan. 546, 4 Pac. Rep. 1026; Shattuck v. Knight, 25 
 "W. Va. 590; Ryan Drug Co. v. Hvambsahl, 89 Wis. 61, 61 N. W. Rep. 299. 
 
 •• Askwith V. Allen, 33 Neb. 418, 50 N. W. Rep. 267. 
 
 * Hernsheim v. Levy, 32 La. Ann. 340; Smith v. Easton, 54 Md. 138, 39 
 Am. Rep. 355; Horton v. Fancher, 14 Hun. 172; Freeman •v. Campbell, i 
 N. Y. St. Rep. 728; Thompson v. Dater, 57 Hun, 316, 10 N. Y. Supp. 613; 
 Wando Phosphate Co. v. Rosenberg, 31 S. C. 301, 9 S. E. Rep. 969. 
 
 s Ante, pp. 59, 60. 
 
ATTACHMBNT. 63 
 
 of his effects. This clause of our law, it does seem to me, ought 
 to be construed as contemplating those cases where the debtor so 
 secretes, covers up, or hides his property, as to injure the creditor 
 in the matter of realizing payment of his debt. Thus if a debtor 
 represents that he is insolvent, or that he has less money or 
 property than he really has, when made with the intent to injure 
 his creditor, is such a concealment as to give ground for an 
 attachment;^ and the fact of concealment sufficiently appears 
 where the affidavit avers that the property was secretly removed 
 out of its usual place at night and found several miles distant, 
 and that when it was overtaken the person having posses- 
 sion thereof made conflicting statements as to whose property 
 it was.* 
 
 (A) The eighth and last ground for an attachment with us i» 
 where the debt or liability has been fraudulently contracted or in- 
 curred. The cases are so numerous and diverse wherein fraud 
 may be practiced in the matter of contracting or incurring the 
 debt, that we shall make no effort to lay down any particular 
 rules governing in cases of this sort. The following are a few of 
 the instances in which the debt was held to have been fraudu- 
 lently contracted or incurred: representing one's self to be solv- 
 ent, and thereby inducing the acceptance of new notes for over- 
 due ones, when in fact the debtor is not solvent;' where a father, 
 for the purpose of inducing a sale of goods on credit, falsely rep- 
 resents that the vendees are his sons and are partners, and that 
 he is backing them with a large capital;* and if any one buys 
 property on credit, with the positive intention not to pay for it, 
 whether he makes false representations as to his ability to pay 
 for it or not, he thus perpetrates a fraud upon the vendor, and is 
 guilty of fraudulently contracting the debt for which an attach- 
 ment may be issued;^ and whether such was his intention at the 
 time of his purchase may be inferred from his circumstances, ac- 
 tion and conduct, not only in respect to the sale or contract in 
 question, but in other contemporaneous transactions.® And while 
 mere insolvency or inability to pay for property purchased by a 
 
 ' I Shinn, Attaclim. & Gamshm., | 123. ° Idem, I 150. 
 
 3 Wachter v. Famachon, 62 Wis. 117. 
 
 * Kirkendall v. Shorey, 28 Neb. 631; s. c. 44 N. W. Rep. 992. 
 5 Miller v. White, 46 W. Va. 67, 33 S. E. Rep. 332; Blackwell v. Pry, 49 
 Mo. App. 638. 
 ' Miller v. White, supra. 
 
64 EQUITY PRINCIPLES. 
 
 party will not render the sale fraudulent on his part, if he ex- 
 pects to pay, and has reasonable ground for such expectation, 
 still, if, in addition to his insolvency, he makes false representa- 
 tions as to his financial ability or circumstances, calculated to in- 
 duce the seller to believe he will be paid for the property sold, a 
 ground for an attachment is thus shown under this clause of the 
 statute.^ 
 
 The representations need not necessarily be made to the plain- 
 tifE in the suit or the party selling the goods, to authorize an at- 
 tachment under this part of the attachment law. Thus, where 
 one makes material false statements to a commercial agency, for 
 the purpose of establishing a false credit, which leads another to 
 make a sale to him oij credit which he would not have done but 
 for the false statements, the debt is fraudulently contracted 
 within the meaning and contemplation of the law.^ But, to 
 bring representations of this sort within the purview of the 
 statute, it must be clearly shown that they were made for the 
 purpose of accomplishing a fraud lipon the vendor or some other 
 dealer.' 
 
 It is perhaps scarcely necessary to state, that false representa- 
 tions, made after the debt has been contracted, constitute no 
 ground for an attachment.* And, where only a part of the debt 
 in suit and for which attachment issues has been fraudulently 
 contracted, the attachment cannot be sustained;^ nor can the at- 
 tachment be upheld against any one except parties to the fraud;* as 
 where the debt, fraudulently contracted, has been assumed by a 
 third party, an attachment can not be sustained against him on 
 such ground.^ 
 
 § 39- Of the affidavit for an attachment — 
 
 There can be no attachment issued without the affidavit pre- 
 scribed by the statute has been filed with the clerk of the court 
 
 ' Miller v. White, supra; Lewis v. Pratt, 11 Miu. 57 (Gil. 31); Warner v. 
 Kade, 15 Mo. App. 600; Young v. Cooper, 12 Neb. 610, 12 N. W. Rep. 91; 
 Rosenthal v. Wehe, 58 Wis. 621, 17 N. W. Rep. 318. 
 
 'Emerson v. Detroit Steel & Spring Co., 100 Mich. 127,- 58 N. W. Rep. 
 
 659- 
 
 ^Victor V. Henlien, 33 Hun, 549; Curtis v. Hoxie, 88 Wis. 41, 59 N. W. 
 Rep. 581 ; Kilpatrick-Koch Dry Goods Co. v. McPheely, 37 Neb. 800, 56 N. 
 W. Rep. 389. 
 < I Shinn, Attachm. & Garnishm., \ 125. s Idem. « Idem. ^ Idem. 
 
ATTACHMKNT. 65 
 
 in which the suit is or will be brought. This affidavit lies at the 
 very foundation of the action, and upon it is made to depend the 
 court's jurisdiction or right to issue the order of attachment.^ 
 
 The affidavit, to be sufficient to sustain an attachment in our 
 state, must state the nature of the plaintiff's claim, the amount, 
 at the least, which the affiant believes the plaintiff is justly enti- 
 tled to recover in the action or suit, and also the affiant's belief 
 in the existence of some one or more of the grounds authorizing 
 an attachment.^ 
 
 The law regulating the issuance of attachments should receive 
 a strict construction, and the affidavit should conform to all of 
 the essential requirements of the statute.' Thus, an affidavit is 
 not sufficient which uses the word "thinks" instead of "be- 
 lieves" the plaintiff is justly entitled to recover, etc.,"* or where 
 it does not contain the word "justly" with reference to the 
 amount that the plaintiff is entitled to recover;^ or where it does 
 not employ the phrase "at the least" with reference to the 
 amount which the affiant believes the plaintiff ought to recover 
 in the suit. ' 
 
 The affidavit may be made by the plaintiff or some other cred- 
 ible person, but it is not necessary that the affidavit state that 
 the affiant is "a credible person," as that will be presumed until 
 the contrary appears;^ it should show on its face, however, that 
 the affiant was sworn, by the use of a jurat.* Great care should 
 be observed in the drafting of an affidavit for an attachment, as a 
 defective one cannot be supplemented by subsequent affidavit or 
 
 ' Hudkins v. Haskins, 22 W. Va. 645, 650; Drake on Attachment (6th ed.), 
 ?87. 
 
 ' Code, chap. 106, sec. i; Hudkins v. Haskins, 22 W. Va. 645; Sand- 
 heger v. Hosey, 26 W. Va. 221; Cosner's Adm'r v. Smith, 36 W. Va. 788; 
 s. c. 15 S. E. Rep. 977; Altmeyer v. Caulfield, 37 W. Va. 847; s. c. 17 S. E. 
 Rep. 409; United States Baking Co. v. Bachman, 38 W. Va. 84; s. c. 18 S. E. 
 Rep. 382. 
 
 3 Altmeyer v. Caulfield, 37 W. Va. 847; s. c. 17 S. E. Rep. 409; United States 
 Baking Co. v. Bachman, 38 W. Va. 84; s. c. 18 S. E. Rep. 382; Capehart v. 
 Dowery, 10 W. Va. 130-135; Cosner's Admr. v. Smith, 36 W. Va. 788; s. c. 
 15 S. E. Rep. 977; Crim v. Harman, 38 W. Va. 596; s. c. 18 S. E. Rep. 753. 
 
 ■• Rittenhouse v. Harman, 7 W. Va. 380. 
 ■ 5 Reed V. McCloud, 38 W. Va. 701; s. c. 18 S. E. Rep. 924. 
 
 « Altmeyer v. Caulfield, 37 W. Va. 847; s. c. 17 S. E. Rep. 409. 
 
 ' Ruhl V. Rodgers, 29 W. Va. 779; s. c. 2 S. E. Rep. 798. 
 
 8 Cosner's Admr. v. Smith, 36 W. Va. 785; s. c. 15 S. E. Rep. 977. 
 5 
 
66 EQUITY PRINC1PI.SS. 
 
 proof. ^ But this rule forbidding amendments to affidavits for 
 attachments is not infringed by the correction, by way of amend- 
 ment, of certain clerical mistakes and mere matters of form in 
 the affidavit.'' Nor does this rule preclude the filing of a supple- 
 mental affidavit of any additional facts which may have come to 
 the knowledge of the party since the filing of the original affida- 
 vit, and which are relied on to show the existence of the grounds 
 of the attachment.^ And the supplemental affidavit need not 
 expressly state that the additional facts came to the knowledge 
 of the affiant since the filing of the first affidavit.* 
 
 While it is not necessary in foreign attachment that the affi^ 
 davit should show how the defendant is a nonresident,^ yet where 
 it is sought to hold a corporation liable to attachment as if a non- 
 resident defendant, because of its failure to comply with the re- 
 quirements of section 37 of chapter 54 of the code, in not appoint- 
 ing some person by power of attorney duly executed by it to accept 
 service of process in suits against such corporation, the affidavit 
 must show that the requirements of said section have not been> 
 complied with, or the order of attachment cannot be issued.* 
 
 Unless the attachment is sued out because of the defendant's 
 nonresidence, the affiant shall state in his affidavit the material 
 facts relied upon by him to show the existence of the grounds 
 upon which his application for an attachment is based.' These 
 material facts must be such as to produce in the mind of the court 
 the conclusion that the ground for the attachment exists.^ 
 And such statement must be certain and definite, in a legal point- 
 of view, so as to inform those entitled to defend the attachment, 
 what particular facts they must repel.' 
 
 The opinion in this case ^'' indicates very clearly that in order to 
 make an affidavit sufficient as to the facts set out therein, upon 
 
 ' United States Baking Co. v. Bachman, 38 W. Va. 84; s. c. 18 S. E. 
 Rep. 382. 
 
 » Crim V. Harman, supra, citing Bank v. Gettinger, 4 W. Va. 305, and An- 
 derson V. Coal Co., 12 W. Va. 526. 3 Code, ch. 106, sec. 1. 
 
 < Miller V. Zeigler, 44 W. Va. 484, 29 S. E. Rep. 981. 
 
 5 Pendleton v. Smith, i W. Va. 16. 
 
 ' United States Baking Co. v. Bachman, 38 W. Va. 84; 18 S. E. Rep. 382. 
 
 ' Code, chap. 106, sec. i. 
 
 «Sandhegerv. Hosey, 26 W. Va. 221; Delaplain & Co. v. Armstrong & 
 Uhlrich, 21, W. Va. 211. 
 
 9 Goodman Brothers & Co. v. Henry, 42 W. Va. 526, 35 L. R. A. 847. 
 
 " Goodman Brothers & Co. v. Henry, supra. 
 
ATTACHMENT. 67 
 
 ■wldch to base the ground for an attachment, it should aver the 
 time, place, and all the circumstances of and surrounding the 
 facts relied upon, to uphold the ground of the attachment.^ 
 
 This requirement is intended to protect the alleged debtor 
 against an abuse of the attachment law. The facts stated must 
 be capable of denial and disproof, and they must of themselves 
 show an improper, illegal or fraudulent act; and they must ex- 
 clude every reasonable conclusion that the act was proper or 
 innocent. If they leave it doubtful whether the act alleged was 
 fraudulent or innocent, the affidavit will be insufficient. The 
 mode and manner of the act and the attendent facts must be 
 stated, in order that the court may determine the purpose and 
 character of the act and be able to decide for itself upon the 
 propriety or impropriety of the act and to say whether it was 
 fraudulent or innocent.^ 
 
 Usually the plaintiff may allege as many distinct and separate 
 grounds of attachment, within the terms of the statute, as he 
 may deem expedient. But in doing so care must be taken that 
 there be no inconsistency between any two of the grounds stated, 
 for that would introduce an element of uncertainty and indefi- 
 niteness in the affidavit which might vitiate the attachment. 
 An affidavit alleging one or other of two or more distinct grounds 
 would be bad, because of the impossibility of determining which is 
 relied on to sustain the attachment. The several distinct statu- 
 tory grounds, or facts of different natures, if two or more of such 
 grounds or facts are stated, must be stated in the affidavit con- 
 junctively and not disjunctively. But if the affidavit states two 
 or more phases of the same fact, or even different facts of the 
 same nature, which constitute together a single statutory ground 
 for an attachment, and do not unite two or more of such grounds, 
 they may be stated disjunctively and the affidavit will not be bad 
 for that reason. Thus when the language of the statute is, "so 
 
 ' See the opinion of Brannon, J., in this case. 
 
 ' Sandheger v. Hosey, supra, pp. 223, 224; Delaplain & Co. v. Armstrong 
 & Uhlrich, 21 W. Va. 211, 213, 214; Hale v. Donahue & Co., 25 W. Va. 
 414; Capehart, Ex'or, v. Dowery, 10 W. Va. 130; Landeman v. Wilson, 29 
 W. Va. 203. In the following cases the material facts set out in the affidavit 
 •were held sufficient to sustain the attachment; Landeman v. Wilson, supra; 
 Shattuck V. Knight, 25 W. Va. 590, 601, 602; but in the following cases the 
 affidavits were held insufficient so far as the statement of the material facts 
 are concerned; Delaplain & Co. v. Armstrong & Uhlrich, 21 W. Va. 211; 
 Sandheger v. Hosey, supra. 
 
68 BQUITY PRINCIPLES. 
 
 absconds or conceals himself that the ordinary process of law can- 
 not be served on him," and the affidavit used the precise lan- 
 guage of the statute, the court held it was sufficient.^ Or, when 
 the affidavit, using the words of the statute, alleged that the 
 defendant "has assigned, disposed of or concealed, or is about to 
 assign, dispose of or conceal his property, with intent to defraud 
 his creditors," the court held it was sufficient.^ So where the 
 affidavit states that the defendant "has property or rights in 
 action which he conceals, the affidavit is not bad.^ 
 
 The facts set forth in the affidavit to sustain the ground of the 
 attachment should be positively averred, and not upon informa- 
 tion and belief.* While the grounds of the attachment maybe 
 stated upon the affiant's belief, yet the law is otherwise as to the 
 essential facts which give rise to the grounds relied on by the 
 plaintiff for his attachment.* 
 
 § 40. Of the order and return of the attachment — 
 
 The form of the order of attachment is prescribed by the statute,' 
 and if no bond is given, the officer is simply required "to attach" 
 the estate of the defendant, etc. ; but if, at the time of suing out 
 the attachment or afterwards before judgment, the plaintiff gives 
 bond as required by the sixth section of chapter 106 of the Code, 
 the officer is commanded "to attach and take into his possession" 
 the estate of the defendant, etc. One or more attachinents may 
 issue on the same affidavit and bond, and if the second order of 
 attachment is regular in all respects, and properly levied, it will 
 create a valid lien upon the property of the defendant levied upon 
 under it, although the first attachment may be quashed for ir- 
 regularity.' 
 
 Care should be observed in the issuance of the attachment that 
 the amount inserted therein as the debt of the plaintiff, to pay 
 which and the costs the officer is required to attach the estate 
 
 ' Sandheger v. Hosey, 26 W. Va. 223, citing Conrad v. McGee, 9 Yerg. 
 428; Goss V. Gowing, 5 Rich. L. 477. 
 
 " Sandheger v. Hosey, supra, citing Klenk v. Schwalm, 19 Wis. in; Drake 
 on Attachment, W loi, 102. 3 Idem. 
 
 * Delaplain v. Armstrong, 21 W. Va. 211, 214; Capehart v. Dowery, 10 W. 
 Va. 130; Sublett & Gary v. Wood, 76 Va. 318. 
 
 5 Idem. ^ Code, chap. 106, sees, i, 2. 
 
 ^ Ballard v. Great Western Mining & Manufacturing Co., 39 W. Va. 394; 
 s. c. 19 S. E. Rep. 510. 
 
ATTACHMBNT. 69 
 
 of the debtor, does not exceed the amount of the plaintiff's claim 
 set forth in the affidavit, as this is not such a clerical error as 
 may be corrected on motion, and such order of attachment will 
 be quashed on motion of the defendant.^ But an order of attach- 
 ment not signed by the clerk is only voidable and will be treated 
 as a clerical error, and may therefore be amended.' 
 
 Inasmuch as an attachment is merely ancillary process, it must 
 be sued out in an action about to be brought or in a cause already 
 pending; so that if the attachment is issued in a cause that has 
 already abated, it cannot be sustained by the court.' It is held 
 that the order for an attachment is. not a writ, so as to require it 
 to run in the name of the state.* 
 
 The attachment may be directed to the sheriff or a constable 
 in any county of the state, and several orders of attachment may 
 be issued and delivered to different officers at the same or differ- 
 ent times.'' As to the time when the order of attachment . shall 
 be made returnable, it is provided by statute that it shall be to 
 the next term of the court or to some rule day.* The form of 
 the order is silent as to what day of the term it shall be made 
 returnable, 6ut as the day is not fixed in the attachment law, it 
 must be governed by the statute relating to the return of pro- 
 cess generally, and this requires it to be returnable to the first 
 day of the term.'' Should it be made returnable to a wrong day, 
 it will be treated as void.' It is absolutely necessary that the 
 officer's return show that the property levied on by virtue of the 
 attachment is the property of the defendant.' The return, 
 
 ' Ballard v. Great Western Mining & Maufacturing Co., supra. 
 
 " Miller v. Zeigler, 44 W. Va. 484, 29 S. E. Rep. 981. 
 
 3 Steele v. Harkness, 9 W. Va. 13; Pullman v. Aler, 15 Gratt. 54. 
 
 * Gutman & Co. v. Virginia Iron Co., 5 W. Va. 22. The form laid down 
 in the code runs in the name of the state, but the statute directing the form 
 must be construed as directory, and not as mandatory. 
 
 5 Code, chap. 106, sec. 2. 
 
 <■ Code, chap. 124, sec. 2; Idem, chap. 106, sees, i, 2; Coda v. Thompson, 
 39 W. Va. 67; s. c. 19 S. E. Rep. 548. 
 ' Coda V. Thompson, supra. 
 
 * Idem. In the State of Virginia, the attachment must be made return- 
 able to a term of court and not to rules. Grinberg v. Singerman, 90 Va. 645; 
 s. c. 19 S. E. Rep. 161. 
 
 » Clay V. Neilson, 5 Rand. 596; Robertson v. Hoge, 83 Va. 124; s. c. i S. E. 
 Rep. 667; Offterdinger v. Ford, 86 Va. 917; s. c. 12 S. E. Rep. i. 
 
70 EQUITY PRINCIPLES. 
 
 where the levy is on real estate, must contain such a description 
 thereof as to clearly comprehend and designate the property.^ 
 
 § 41. Of the levy of the attachment — 
 
 An attachment, as against a nonresident, may be issued in one 
 county and levied in another by the sheriff thereof, when there 
 are effects or estate of the debtor in the latter county, and such 
 levy will create a valid lien on such property of the nonresident.^ 
 The attachment may be levied upon any estate, real or personal, 
 of the defendant named therein, or so much thereof as may be 
 sufficient to pay the amount for which it is issued.' Under this 
 law the undivided interest of a tenant in common may be 
 levied on by attachment;* so may open accounts as evidences of 
 debts due the defendant;^ so also upon steamboats navigating the 
 waters of this state;® the separate estate of a married woman;' 
 upon the property of a railroad company, including its line of 
 road and its franchises.' But a mere possibility, such as the 
 right to a fee in real property in case of surviving another per- 
 son, is not attachable;' nor a chattel pawned or mortgaged in an 
 action against the pawner or mortgagor, when the pawnee or 
 mortgagee is in possession thereof;^" nor shares of stock in a 
 foreign corporation, in the absence of a statute authorizing it, 
 though seized within the state;" nor the goods of a partnership, 
 to the exclusion of the other partners from the possession thereof ;"* 
 nor upon property in the custody of the law."^ And property is 
 
 ' Hall V. The Bank of Virginia, 14 W. Va. 584, 611. 
 
 = Pendleton v. Smith, i W. Va. 16. 3 Code, chap. 106, sec. 5. 
 
 * Curry v. Hale, 15 W. Va. 867. 
 
 s Porter v. Young, 85 Va; 49; s. c. 6 S. E. Rep. 803. 
 
 '' Commonwealth v. Fry, 4 W. Va. 721. 
 
 ' Dulin V. McCaw, 39 W. Va. 721; s. c. 20 S. B. Rep. 681. 
 
 * Chapman v. Railroad Company, 26 W. Va. 299. 
 
 ' Young V. Young, 89 Va. 675; s. c. 17 S. E. Rep. 470; s. c. 23 L. R. A. 
 642. There is an exhaustive and valuable note to this case in the lawyer's 
 Rep. Annotated, at pp. 642-649, as to what constitutes property that may be 
 levied upon by attachment or other process of the court. 
 
 "Neill V. Rogers Bros. Produce Co., 41 W. Va. 37, 23 S. E. Rep. 702; 
 I Shinn, Attachm. & Gamishm. ? 212. 
 
 " I Shinn, Attachm. & Gamishm. ? 209. 
 
 " Idem, % 211. He can only make a nominal seizure of the property, sub- 
 ject to the rights of possession of the co-partners and the partnership rights 
 and liens. 
 
 »3 Idem, I 46; Brewer v. Hutton, 45 W. Va. 106, 30 S. E. Rep. 81. 
 
ATTACHMENT. 71 
 
 in the custody of the law when seized upon by an officer by at- 
 tachment or execution, or is taken into his control constructively 
 by some of the means known to the law;^ or when held by ex- 
 ecutors, administrators, guardians, and like quasi officers in their 
 representative and administrative capacity.* Nevertheless, this 
 does not preclude the levy of different or successive attach- 
 ments, and the creation thereby of successive liens upon the same 
 property when in the hands of the same officer.' 
 
 § 42. Of the garnishee in attachment — 
 
 ' 'The plaintiff may, by an indorsement on the order (of attach- 
 ment) , designate any person as being indebted to, or having in 
 his possession, the effects of the defendant, or one of the defend- 
 ants; and in such case the clerk shall make as many copies of the 
 order as there are persons designated, with an indorsement 
 thereon that the person so designated is required to appear at the 
 next term of the court in which the action or suit is pending, and 
 disclose on oath in what sum he is indebted to the defendant, 
 and what effects of the defendant he has in his hands; and it 
 -shall- be sufficiently levied on such person by delivering him a 
 copy of the order and indorsement, or by a service thereof upon 
 him in the same manner as a noitce may be served."* The pro- 
 cess of garnishment must be returnable to the next term of the 
 •court after the same has been issued;' otherwise the process is 
 void, and hence not amendable.* 
 
 In proceedings against a garnishee in equity, it is usual and, 
 indeed, proper, to make the party sought to be held as a 
 garnishee, a party defendant to the suit.^ After being made a 
 party to the cause his liability is disclosed by his answer to the 
 
 ' Idem, \ 408. = Brewer v. Hutton, supra. 
 
 3 Idem, \ 408, and the numerous authorities cited in the foot-notes by the 
 learned author. 
 
 ♦ Code, chap. 106, sec. 5. 
 
 5 Coda V. Thompson, 39 W. Va. 67; s. c. 19 S. E. Rep. 548. « Idem. 
 
 1 McKinsey v. Squires et al., 32 W. Va. 41; s. c. 9 S. E. Rep. 55; Glassell 
 -V. Thomas, 3 Leigh, 113; Jameson v. Deshields, 3 Gratt. 4; Smith v. Jenny, 
 4 Hen. & Munf. 440; Ross v. Austin, 4 Hen. & Munf. 502; Kennedy v. 
 Brent, 6 Cranch, 187; i Bart. Ch. 580, 581; Carson v. Allen, 2 Chand. (Wis.) 
 123; McKey v. Cobb, 33 Miss. 533; Dennison v. Benner, 36 Me. 227; Brock- 
 man v. Hanks, 5 J. J. Marsh. (Ky.) 252; Keel v. Ogden, g T. B. Monroe 
 <Ky.), 362. 
 
72 EQUITY PRINCIPI<BS. 
 
 bill.^ And as a defendant he can make such defense as in equity 
 or law will show that he is not indebted to the principal debtor 
 in the suit.^ 
 
 Inasmuch as the plaintiff can only recover against the garnishee 
 when he has a right to enforce his claim against the principal de- 
 fendant in the suit, it is but reasonable and just that the gar- 
 nishee should be permitted to make defense to the plaintiff's 
 bill.' He may, therefore, demur or plead to the same, as he may 
 think advisable.* He also has the right to insist upon the regu- 
 larity of the proceedings whereby it is sought to hold him liable 
 as a party to the suit.' 
 
 If the garnishee fails to appear the bill may be taken for con- 
 fessed as to him, and the cause set for hearing, or an answer may 
 be compelled by attachment, or by an order for him to be brought 
 in to answer interrogatories.' 
 
 It must not be forgotten that the process of garnishment itself 
 creates no lien, but only preserves or renders available the lien 
 created by the levy of the attachment sued out in the suit. So 
 that if the suit is dismissed as to the garnishee in foreign attach- 
 ment, there can be no decree entered in the cause against the 
 nonresident.^ 
 
 After the process of garnishment has been served on the gar- 
 nishee, the effect will be to bind and hold the debts existing or 
 effects in the garnishee's hands at the date of the service thereof; 
 and also debts arising or effects coming to his han(is thereafter 
 and until he files his answer as such garnishee, but not after the 
 filing of such answer.' 
 
 The language of the law as to who may be gamisheed, is that 
 the plaintiff may designate "any person" as being indebted to, 
 etc' The word "person" includes corporations, if not restricted 
 
 ' Code, chap. io6, sec. 14. 
 
 ° Glassell v. Thomas, 3 Leigh, 113; Carson v. Allen, 2 Chand. (Wis.) 123; 
 Varian v. New England Mut. Ace. Ass'n, 156 Mass. i; s. c. 25 N. E. Rep. 
 368; Chatroop v. Borgard, 40 HI. App. 279; Johnson v. Geneva Pub. Co., 
 bo Mo. 000; s. c. 26 S. W. Rep. 676. 
 
 3 Drake on Attachment (6th ed.), ? 459. 
 
 * I Bart. Ch. Prac. 580, 581. 
 
 5 McKey v. Cobb, 33 Miss. 533. • i Bart. Ch. Prac. 581. 
 
 ^ Campbell v. Scott, 5 T. B. Mon. (Ky.) 387. See also Paul v. Rogers, 
 Id. 169. 
 
 « Ringold V. Suiter, 35 W. Va. 186; s. c. 13 S. E. Rep. 46. 
 
 ' Code, chap. 106, sec. 5. 
 
ATTACHMENT. 73 
 
 ■fay the context.^ And this is the general rule in the construction 
 of statutes.* But it is quite generally held that the law of at- 
 tachment and garnishment does not include municipalities, such 
 as incorporated cities and towns, so as to make them amenable 
 to process of garnishment and to take a judgment or decree 
 against them as garnishees.' And the same doctrine prevails as 
 to states, counties and other like municipalities.* Nor do statutes 
 providing for garnishment process usually include the following 
 persons: the clerk of a court holding funds a s such;^ a guardian 
 holding moneys as such;* a receiver of the court;'' a public officer 
 as to funds which he holds in his public capacity;' a sheriff, com- 
 mittee of a lunatic, assignee, referee, commissioner of a court, 
 or a trustee holding funds as the agent of the court, a purser, 
 paymaster or other financial agent of the government.' Neither 
 is one who may only be liable to the debtor for unliquidated dam- 
 
 " Code, chap. 13, sec. 17, cl. ninth. 
 
 = Dollman v. Moore, 19 1,. R. A. notes, pages 222, 223. 
 
 - Merwin v. Chicago, 45 111. 133; City of Erie v. Knapp, 29 Pa. St. 173; 
 Bradley V. Richmond; 6 Vt. 121; Bumham v. Fond du Lac, 15 Wis. 300; 
 Switzer v. Wellington, 40 Kan. 250; s. c. 19 Pac. Rep. 620; Born v. Williams, 
 81 Ga. 796; s. c. 7 S. E. Rep. 868; Ottawa First Nat. Bank v. Ottawa, 43 
 Kan. 294; s. c. 23 Pac. Rep. 485; Past v. Wolf, 38 111. Ap. 27; Bank of South- 
 western Ga. V. Americus, 92 Ga. 361; s. c. 17 S. E. Rep. 287; but in some 
 jurisdictions a city or town may be liable as garnishee. Laredo v. Nalle, 65 
 Tex. 359; Wales v. Muscatine, 4 Iowa, 302; Clapp v. Walker, 25 Iowa, 315. 
 
 * Divine v. Harvie, 7 T. B. Monroe (Ky. ) 439; Dotterer v. Bowe, 84 Ga. 
 769; s. c. II S. E. Rep. 896; Dollman v. Moore, 70 Miss. 267; s. c. 19 L. R. 
 A. 222; School Dis. v. Gage, 39 Mich. 484; Merrell v. Campbell, 49 Wis. 535; 
 s. c. 35 Am. Rep. 785; State v. Eberly, 12 Neb. 616; Dewey v. Garrey, 130 
 Mass. 85. 
 
 5 Curtis V. Ford, 78 Tex. 262; s. c. 10 L. R. A. 529; Sweetzer v. Claflin, 74 
 Tex. 667; Tuck v. Manning, 150 Mass. 211; s. c. 5 L. R. A. 666. But in the 
 case of Wilbur v. Flannery, 60 Vt. 581, it is held that money in posses- 
 sion of the clerk of the county court, paid to him under n decree of the 
 court of chancery, is attachable under trustee (garnishment) process; s. 
 c. Atl. Rep. 203. 
 
 ' Hanson v. Butler, 48 Me. 81; Gassett v. Grout, 4 Mete. (Mass.) 486. 
 
 7 Curtis V. Ford, 10 L. R. A. note pages 529, 530; Taylor v. Gillean, 23 
 Tex. 508; I Bart. Ch. Prac. 581. 
 
 « Cheely v. Brewer, 7 Mass. 259; Brooks v. Cook, 8 Id. 246; Sharp v. Clark, 
 2 Mass. 91. 
 
 9 Curtis V. Ford, 10 L. R. A., note pages 529, 530; i Bart. Ch. Prac. 581. 
 
74 EQUITY PRINCIPLES. 
 
 ages, as for the breach of a warranty, amenable to the piocess 
 of garnishment.* 
 
 But private corporations, whether foreign or domestic, where 
 they can properly be brought within the jurisdiction of the court, 
 may be made garnishees.^ So, too, persons holding money or 
 effects as attorney at law,^ a foreign consul,* a sheriff or other 
 officer holding the property in his private capacity and a trustee 
 as to the interest of his beneficiary, or of a surplus after the dis- 
 charge of his trust." 
 
 It is laid down by one of our favorite authors,* that an execu- 
 tor or administrator, in a suit against his testator or decedent, or 
 against a legatee of a specific or pecuniary legacy, may be made 
 a garnishee, and that the attachment may be served on him be- 
 fore his qualification. But there is a large array of authority 
 against this doctrine as thus announced by this careful and able 
 author;^ and in this state it is otherwise, as an executor or ad- 
 ministrator cannot be gamisheed here;' nor a debtor of the estate 
 of his decedent.' 
 
 When it is made to appear that the garnishee is liable to the 
 debtor, a judgment or decree may then be rendered against him 
 for the amount so found due and owing from him.*" But it 
 should not be greater than the judgment or decree, including in- 
 terest and costs." It is not necessary to make demand on the 
 garnishee before taking judgment against him, though such de- 
 mand would be necessary if the suit were being prosecuted by 
 
 • Capes V. Burgess, 135 111. 61; s. c. 25 N. E. Rep. 1000. 
 
 ' Baltimore & O. R. R. Co. v. Gallahue, 12 Gratt. 665; Bank of the United. 
 States V. Merchants' Bank, 1 Rob. 573; St. Louis Perpetual Ins. Co. v. 
 Cohen, 9 Mo. 421; Mahany v. Kephart, 15 W. Va. 609; Taylor v. Burlington, 
 etc., R. R. Co., 5 Iowa, 114; Burton v. Warren, 11 Iowa, 166. 
 
 3 Tucker v. Butts, 6 Ga. 580; White v. Bird, 20 La. Ann. 188. 
 
 * Kidderlin \, Meyer, 2 Miles (Pa.) 242. s i Bart. Ch. Prac. 5S1., 
 <■ Idem. 
 
 ? Brooks V. Cook, 8 Mass. 246; Thorn v. Woodruff, 5 Ark. 55; Winchell v.- 
 Allen, I Conn. 3S5; Stanton v. Holmes, 4 Day (Conn.), 87; Lyons v. Hous- 
 ton, 2 Harr. (Del.) 436; Commercial Bank v. Nealy, 39 Me. 402; Curling v. 
 Hyde, 10 Mo. 374; Kurd's Case, 9 Wend. 32; Welch v. Gurley, 2 Hayw. (N. 
 C.) 334; McComb V. Dunch, 2 Dall. 73; Pringle v. Black, 2 Dall. 97. 
 
 ' Parker v. Donnally, 4 W. Va. 648; Brewer v. Hutton, 45 W. Va. 106, 3a 
 S. E. Rep. 81. 
 
 9 Brewer v. Hutton, supra. '" Swann v. Summers, 19 W. Va. 115. 
 
 " AUeman v. Knight & Bro., 19 W. Va. 201. 
 
ATTACHMENT. 75 
 
 the principal debtor against such garnishee in an independent 
 suit.^ But before any decree or judgment can be taken against 
 the garnishee, it is necessary that the liability of the defendant 
 or real debtor be established by the record of the proceedings.'* 
 The garnishment proceedings constitute a part of the record in 
 the attachment, and will be treated as belonging to it.^ It is not 
 essential that both decrees be taken at the same time.* 
 
 When, by a court having jurisdiction of the action and of the 
 garnishee, judgment is rendered against him, and he has satisfied 
 it in due course of law, such judgment is conclusive against 
 parties and privies of all matters of right and title decided by 
 the court, and constitutes a complete defense to any pending or 
 subsequent action by the defendant against the garnishee, for the 
 amount which the latter was compelled to pay; and this though 
 the court be a foreign tribunal.* 
 
 § 43. Of the defense to the attachment — 
 
 The right to sue out an attachment may be contested, and 
 when the court is of opinion that the facts stated in the affidavit 
 were not sufficient to authorize the issuing thereof, or that the 
 affidavit is otherwise insufficient, judgment shall be entered that 
 the attachment be quashed. If the defendant desire to controvert 
 the existence of the grounds for the attachment stated in the 
 affidavit, he may file a plea in abatement denjdng the existence 
 of such grounds, and the issue on such plea shall be tried by a 
 jury, unless the same be waived by the parties. The affirmative 
 of such issue shall be with the plaintiff; and if he fail to prove 
 to the satisfaction of the jury the existence of the grounds de- 
 nied by the defendant, the verdict shall be for the defendant, 
 and judgment shall be entered that the attachment be abated.' 
 
 The only defenses that can be made to the attachment are those 
 provided by the statute.^ Hence, if the affidavit is not such as 
 the law contemplates as sufficient, the court will quash the at- 
 tachment, and the judgment or decree of the court will be en- 
 
 ' Wagon Co. v. Peterson, 27 W. Va. 314. 
 
 ' I Drake, Attach. (6th ed.), ?? 460, 658a. 3 Idem, § 658a. 
 
 ■• Idem, I 658b. 5 Idem, i 706. 
 
 * Code, chap. 106, sec. 19. 
 
 ' Stevens v. Brown, 20 W. Va. 450; Anderson v. Kanawha Coal Co., 12 W. 
 Va. 526; Dulin v. McCaw, 39 W. Va. 721; s. c. 20 S. E. 681. 
 
76 EQUITY PRINCIPLES. 
 
 tered accordingly;^ and if the affidavit is sufficient upon its face 
 and the defendant desires to controvert the existence of the 
 grounds alleged therein for the attachment, this must and can 
 only be done by plea in abatement.^ 
 
 It makes no difference that the suit is in equity, instead of at 
 law, the defense must be by plea in abatement as provided by 
 the statute.* 
 
 "Whether the issue raised by the plea shall be tried by the court, 
 or by a jury impaneled for the purpose, is not clear to us. In the 
 case of Wetherill v. McCloskey Bros. & Co.* it is said that when 
 a court of equity has taken jurisdiction against an absent de- 
 fendant by attachment proceedings, it must proceed to give relief 
 according to the principles of equity. But in the case of Mc- 
 Kinsey v. Squires,* upon attachment in equity for the recovery of 
 damages for breach of marriage promise and attendant seduction 
 in aggravation of damages, the court denied the right of a trial 
 by jury in the matter of determining the quantum of damages, 
 and they were assessed by the chancellor on the proof contained 
 in the depositions. Our statute, which gives the right to pro- 
 ceed in equity, is positive in its provisions as to the trial of the 
 issue raised by the plea in abatement to the attachment being by 
 a jury. It would therefore seem that the court of equity should 
 award a jury, if demanded by either of the parties to the suit, to 
 settle the facts on the issue raised by the plea in abatement of the 
 attachment. 
 
 § 44. Of the decree to be rendered upon the attachment— 
 
 When the attachment is properly sued out, and the case heard 
 upon its merits, if the court be of opinion that the claim of the 
 plaintiff be not established, final judgment (decree) shall be given 
 for the defendant. In either case, the defendant shall recover his 
 
 ' Reed v. McCloud, 38 W. Va. 701; s. c. i8 S. E. Rep. 924. This was a 
 suit in chancery, and the motion to quash was made and entered in the 
 usual manner. 
 
 » Stevens V. Brown, supra, 450, 457; Dulin v. McCaw, supra. In this case 
 it is held that the appearance by the defendant and demurring to the bill, 
 and afterwards filing her answer to the same, did not prevent her from con- 
 testing the plaintiff's right to sue out the attachment because of the defects 
 in the affidavit for the atttachment. See Hogg's PI. & Forms (2d ed.), p. 
 500, note. 
 
 3 Isaacks v. Edwards, 7 Humphreys, 465; s. c. 46 Am. Dec. 86. 
 
 * 28 W. Va. 195. 5 32 w. Va. 41, 9 S. E. Rep. 55. 
 
ATTACHMENT. 77 
 
 costs, and there shall be an order for the restoration to him of the 
 attached effects.' 
 
 If the claim of the plaintiff be established, the decree shall be 
 rendered for him, and the court shall order the sale of any real 
 or personal estate levied upon by virtue of the attachment, 
 which shall not have been previously sold or replevied, and direct 
 the proceeds of the sale of such property and whatever else has 
 been levied upon by the attachment, including what is embraced 
 by any replevy or forthcoming bond, to be applied in satisfaction 
 of the decree. But no real estate shall be sold until all other 
 property and money levied on by the attachment has been ex- 
 hausted, and then only so much thereof as may be necessary to 
 pay the decree.'' 
 
 When the court directs the sale of real estate, it shall prescribe 
 in the decree the terms thereof, and name the officer or person by 
 whom it shall be made.^ 
 
 There can be no personal decree against a nonresident defend- 
 ant, who has not been personally served with process to answer 
 the biU, if he does not enter an appearance to the suit.* But if 
 he appears to the suit, whether he makes defense thereto or not, 
 there may be a personal decree against the defendant and also 
 one for the sale of the property attached; or there may be a mere 
 personal decree against the debtor or a decree directing the sale 
 of the property.' 
 
 By appearance to the action in any case for any other purpose 
 than to take advantage of the defective execution or non-execu- 
 tion of process, a defendant places himself precisely in the situa- 
 tion in which he would be if process were executed upon him, 
 and he thereby waives all objection to the defective execution or 
 non-execution of process upon him.' 
 
 In an attachment suit, it is not necessary or proper to direct 
 an inquiry, whether the rents and profits of the real estate will 
 
 ' Code, chap. io6, sec. 19. 
 
 ' Code, chap. 106, sec. 20; Camden v. Haymond, 9 W. Va. 680. 
 
 3 Idem, sec. 21. 
 
 •• O'Brien v. Stephens, 11 Gratt. 610; Hall v. Lowther, 22 W. Va. 570; 
 Mahany v. Kephart, 15 W. Va. 609. 
 
 s O'Brien v. Stephens, supra; Coleman v. Waters, 13 W. Va. 278; Chap- 
 man V. P. & S. R. R. Co., 18 W. Va. 185; Mahany v. Kephart, 15 W. 
 Va. 609. 
 
 ' Mahany v. Kephart, supra. 
 
78 EQUITY PRINCIPI,BS. 
 
 pay tlie debt within a reasonable time.^ And where a decree is 
 taken against the debtors of a nonresident defendant, it is not 
 necessary to serve a copy of the order of attachment upon them 
 before the rendition of such decree, where such debtors are parties 
 to the suit and charged to be debtors of the non-resident defend- 
 ant.* But there can be no decree in the case affecting the non- 
 resident where the proceeding is by attachment without personal 
 service of process, unless there has been notice by publication 
 against the nonresident, as prescribed by the statute. This is in- 
 dispensable to give the court jurisdiction to hear and determine 
 the cause. And unless this is done, the proceedings are abso- 
 lutely void.' 
 
 » Curry v. Hale, 15 W. Va. 867. 
 
 * McKinsey v. Squires, 32 W. Va. 41; s. c. 9 S. E. Rep. 55. 
 
 3 Haymond v. Camdeu, 23 W. Va, 180; Grinnan v. Edwards, 21 W. Va. 347. 
 
CANCBI.IATION OF WRITTBN INSTRUMENTS. 79 
 
 CHAPTER VIII. 
 
 CANCELLATION OF WRITTEN INSTRUMENTS. 
 
 ■I 45. Grounds of equity jurisdiction in this class of cases. 
 
 46. Removing cloud from title to real estate. 
 
 47. Illustrations of the exercise and refusal of equity jurisdiction relating 
 
 to cloud on title to real estate. 
 
 48. Cancellation of instruments because of fraud. 
 
 49. Cancellation of instruments because of mistake. 
 
 50. Cancellation of instruments because of fraudulent concealment. 
 
 51. Cancellation of instruments because of inadequacy of consideration. 
 
 52. Cancellation of instruments because of misrepresentation. 
 .53. Cancellation of instruments because of undue influence. 
 
 54. Cancellation of instrument because of the fiduciary relationship of 
 
 the party in whose iaterest it operates. 
 
 55. Cancellation of instrument because of mental incapacity of party ex- 
 
 ecuting it. 
 
 56. Presumptions as to sanity. 
 
 57. What is a sufficient mental soundness to make a valid contract or 
 
 will. 
 ^8. Cancellation of contracts and agreements on the ground of infancy. 
 
 59. Cancellation of contracts and other instruments on the ground of 
 
 drunkenness. 
 
 60. Party asking cancellation or rescission of instrument must be in situa- 
 
 tion to place the other in statu guo. 
 
 61. Laches or fraud as a defense to the rescission or cancellation of con- 
 
 tracts. 
 
 ^ 45. Grounds of equity jurisdiction in this class of cases — 
 
 Equity will never cancel or rescind a contract, agreement or 
 other written instrument, except upon some recognized principle 
 of jurisdiction belonging to the court of chancery.^ It is the 
 generally-accepted doctrine that equitable relief,- for the purpose 
 of canceling a contract, will not be granted in a case where the 
 injured or defrauded party has an adequate, certain and complete 
 remedy at law.^ It is not enough, however, that there is a legal 
 remedy.' To exclude the equitable jurisdiction, the legal remedy 
 
 ' Beard v. Arbuckle et al., 19 W. Va. 135. 
 
 ' Fitzmaurice v. Hosier, 116 Ind. 363; s. c. 16 N. E. Rep. 175, 177. 
 
 3 Idem. 
 
8o EQUITY PRINCIP1<ES. 
 
 must meet all the requirements of justice, and be in all respects 
 as satisfactory as the relief furnished by a court of equity.^ 
 
 The jurisdiction exercised in matters of cancellation is founded 
 upon the administration of a protective or preventive justice, in 
 analogy to the principle, quia timet; that is, for fear that such 
 instruments might afterwards be vexatiously or injuriously used, 
 when the evidence to impeach them is lost, or that they may be 
 already clouding the title, or affecting the interest of the party ;^ 
 and this branch of equity jurisdiction is now firmly established.* 
 And it is wholly immaterial whether the instrument sought to be 
 canceled is void or only voidable, equity will, in either case, lend 
 its aid.* 
 
 The usual instances wherein equity interposes here are to re- 
 move a cloud upon title to real estate; to cancel deeds or other con- 
 tracts because of fraud, mistake, undue influence, fraudulent con- 
 cealment, inadequacy of consideration, m.ental incapacity and in- 
 fancy; and because of contracts obtained by persons in confidential 
 relationship with others.^ 
 
 ' Fitzmaurice v. Hosier, ii5 Ind. 363; s. c. 16 N. E. Rep. 175, 177. 
 
 = Snell's Princ. Eq. 516. 
 
 3 1 Pomeroy, Eq. Jur. (2d ed.) ?§ no, 112. 
 
 * Snell's Princ. Eq. 519; Fitzmavirice v. Hosier, 116 Ind. 363; s. c. 16 N. 
 E. Rep. 175, 177; Pomeroy's Eq. Jurisprudence, 1377; DeCamp v. Camahan, 
 26 W. Va. 839, 842. 
 
 5 De Camp v. Carnahan, 26 W. Va. 841, 842; Shenandoah Val. R. Co. v. 
 Dunlop, 86 Va. 346; s. c. 10 S. E. Rep. 239; Korne v. Kome, 30 W. Va. 17; 
 s. c. 3 S. E. Rep. 17; Baxter v. Tanner, 35 W. Va. 60; s. c. 12 S. E. Rep. 
 1094; Coal Co. V. Bell, 38 W. Va. 297; s. c. 18 S. E. Rep. 493; Pratt v. Bore- 
 man, 37 W. Va. 715; s. c. 17 S. E. Rep. 210; Rison v. Newberry, 90 Va. 513; 
 s. c. 18 S. E. Rep. 916; Hatthews v. Crockett's Admr. 82 Va. 394; Loftus v. 
 Haloney, 89 Va. 576; s. c. 16 S. E. Rep. 749; Jones v. Degge, 84 Va. 685; 
 s. c. 5 S. E. Rep. 799; Pennybaker v. Laidly, 33 W. Va. 624; s. c. 11 S. E. 
 Rep. 39; Davis v. Strange's Exr., 86 Va. 793; s. c. 11 S. E. Rep. 406; Furlong 
 V. Sanford, 87 Va. 506; s. c. 12 S. E. Rep. 1048; Deem v. Phillips, 5 W. Va. 
 168; Dingles v. Bronson, 14 W. Va. 100; Curlett v. Newman, 30 W. Va. 182; 
 s. c. 3 S. E. Rep. 578; Hale v. Cole, 31 W. Va. 576; s. c. 8 S. E. Rep. 516; 
 Buckey v. Buckey, 38 W. Va. 168; s. c. 18 S. E. Rep. 353; Hiett v. ShuU, 36 
 W. Va. 563; s. c. 15 S. E. Rep. 143; Jones v. HcGruder, 87 Va. 360; s. c. 12 
 S. E. Rep. 792; Anderson v. Cranmer, 11 W. Va. 562; Jarrett v. Jarrett, 11 
 W. Va. 585; Nicholas v. Kerchner, 20 W. Va. 251; Worthington v. Collin's 
 Admr., 39 W. Va. 406; s. c. 19 S. E. Rep. 527; McCarty v. Woodstock Iron 
 Co., 12 L. R. A. 136; Gillespie v. Bailey, 12 W. Va. 70. 
 
CANCELLATION OF WRITTBN INSTRUMENTS. 8 1 
 
 § 46. Removing cloud from title to real estate — 
 
 ' 'A cloud upon title is a title or incumbrance apparently valid, 
 but in fact invalid. ' ' ^ And such cloud must be an instrument or 
 matter in writing -which appears upon the record, thereby casting 
 doubt upon the record title; and a bill will not lie to remove a 
 mere verbal claim or oral assertion of ownership in property.^ 
 But a mere declaration of a grantor, though put upon record, that 
 a deed was obtained by fraud and covin does not constitute such 
 a cloud upon title as to authorize the intervention of a court of 
 equity.' And any gratuitous claim of title or interest in land 
 made ex parte by another, though put upon record, is not a cloud 
 upon title within the meaning of the law.* 
 
 ' 2 Am. & Eng. Enc. Law, 298. 
 
 'Parker v. Shannon, 121 111. 452; s. c. 13 N. E. Rep. 155; Raymond v. 
 Post, 25 N. J. Eq. 447- 
 
 3 First African M. E. Church v. Brown, 147 Mass. 296; s. c. 17 N. E. Rep. 
 546. 
 
 < Nickerson v. Louch, 115 Mass. 94; Leeds v. Wheeler, 157 Mass. 67, 31 N. 
 E. Rep. 709. In the case of Thompson v. Etowah Iron Co., 91 Ga. 538, 17 
 S. E. Rep. 663, Lunipkin, J., discusses the question as to what is a "cloud 
 upon title" to real estate, and also the facts and conditions upon which 
 equity will lend its aid in such case, and in the delivery of his opinion in 
 this case he says: "The principle upon which equity will lend its aid to re- 
 move a cloud upon title is that one in the rightful possession of property is 
 entitled to the full, quiet, and peaceful enjoyment of the same, without 
 present annoyance or harrassment, or threatened molestation. That timely 
 and adequate protection in this respect should ever be afforded, the authori- 
 ties all agree. It is only as to what state of facts and circumstances will 
 present a case for equitable interference that there seems to be any contrari- 
 ety of opinion. The granting of the relief sought has uniformly been re- 
 garded as discretionary, and thus it is that the vast majority of the earlier 
 decisions stand alone upon the individual merits of the cases in which they 
 were rendered, and in consequence are of but little value as establishing any 
 general rule which may be universally followed. For a discussion of the doc- 
 trine, and a review of the cases in which it has been invoked, see 2 Am. & Eng. 
 Enc. Law, 298 et seq.; 3 Pom. Eq. Jur., §? 1397-1399; 2 Estee, PI. & Pr. (3d 
 ed. ), \ 2510; II Cent. Law J. 261. But, despite the want of harmony among 
 the decisions, the judiciary both of England and this country acquiesce in 
 the view that one seeking such aid of a court of equity should affirmatively 
 show (i) that he cannot immediately or effectually maintain or protect his 
 rights by any other course of proceedings open to him; (2) that the instru- 
 ment sought to be canceled is such as would operate to throw a cloud or sus- 
 picion upon his title, and might be vexatiously or injuriously used against 
 him; and (3) that he either suffers some present injury by reason of a hos- 
 6 
 
82 EQUITY PRINCIPLES. 
 
 The general rule in equity is that it will not lend its jurisdic- 
 tion to maintain suits to remove clouds upon title to real estate 
 
 tile claim of riglit, or, though such claim be not asserted adversely or ag- 
 gressively, he has reason to apprehend that the evidence upon which he re- 
 lies to impeach or invalidate the same as a cloud upon his title may be lost 
 or impaired by lapse of time. What is a 'cloud,' such as equity will un- 
 dertake to remove, has been the subject of much difference of opinion, and 
 is a question upon which many of the courts seem to have agreed to disa- 
 gree. It is not many years since Mr. Justice Selden, in dealing with the 
 question as presented in the case of Ward v. Dewey, i6 N. Y. 519, com- 
 mented upon the fact that 'none of the cases define what is meant by a cloud 
 upon title, nor attempt to lay down any general rules by which what will 
 constitute such a cloud maybe ascertained.' Some of the later American 
 cases have endeavored to formulate rules which would relieve the matter of 
 difficulty; but to Mr. Justice Field, now on the supreme bench of the United 
 States, is probably due the credit of first defining, accurately and precisely, 
 the correct test which should govern in all cases. Discussing at length this 
 question in Pixley v. Hugins, 15 Cal. 133, he, being then chief-justice of 
 California, said: 'The true test, as we conceive, by which the question 
 whether a deed would cast a cloud upon the title of the plaintiff may be de- 
 termined, is this: Would the owner of the property, in an action of eject- 
 ment brought by the adverse party, founded upon the deed, be required to 
 ofier evidence to defeat a recovery ? If such proof would be necessary, the 
 cloud would exist. If the proof would be unnecessary, no shade would be 
 cast by the presence of the deed. If the action would fall of its own weight, 
 without proof in rebuttal, no occasion could arise for the equitable interpo- 
 sition of the court, as in the case of a deed void upon its face, or which was 
 the result of proceedings void upon their face, requiring no extrinsic evi- 
 dence to disclose their illegality. All actions resting upon instruments of 
 that character must necessarily fail.' It is from this opinion that the rule 
 stated in 2 Estee, PI. & Pr. (3d ed.), ? 2510, is taken. In the subsequent 
 case of Lick v. Ray, '43 Cal. 83, Wallace, J., employs much the same lan- 
 guage as that used by Chief-Justice Field, and says the rule stated is sup- 
 ported by a long line of decisions by that court. Such is the test which has 
 long been recog^nized by the supreme court of Alabama. Rea v. Longstreet, 
 54 Ala. 291; Lytle v. Sandefur (Ala.), 9 South. Rep. 260, and cases cited. 
 In Florida, it was first adopted in Davidson v. Seegar, 15 Fla. 671, and has 
 since been recognized and followed by the supreme court of that state. 
 Barnes v. Mayo, 19 Fla. 542; Shalley v. Spilman, Idem, 500; Benner v. 
 Kendall, 21 Fla. 584. Employing language used in the case last cited, 
 Beach, in his recent work on Modern Equity Jurisprudence (Vol. 2, § 55S), 
 gives the following abbreviated statement of the rule which now obtains: 
 'If it is insufficient to make a prima facie case in an action of ejectment, 
 and would fall of its own weight, without proof in rebuttal, it does not 
 amount to a cloud, and equitable interference is unnecessary.' The reasons 
 employed in the cases cited cannot but prove convincing that the test an- 
 nounced is the correct solution of the difficulty presented; and in its practi- 
 
CANCEI,I,ATlON OF WRITTEN INSTRUMENTS. 83 
 
 whare the plaintiff is out of possession.^ And tlie possession of 
 the plaintiff must be actual, not merely constructive.^ It must 
 also appear that the plaintiff has title to the land from which 
 he seeks to remove the cloud,' and if it appear that he has no 
 title to the land himself, and other parties have a good title, 
 his bill will be dismissed.* But an exception to this rule is 
 that suit may be brought under our statute, and by virtue 
 thereof, to cancel a tax deed by any one having such an in- 
 terest in the land as would by reason thereof entitle him to re- 
 deem before a deed to the purchaser of the land is made without 
 reference to the question of possession.' And not only must the 
 plaintiff himself be in possession, but a bill to remove a cloud 
 from the title to land cannot be sustained when the person whose 
 claim constitutes the alleged cloud is himself in possession.' But 
 
 cal application, we apprehend, little or no serious trouble or embarrassment 
 can arise." 
 
 • Frost V. Spitley B'k, 30 U. S. (L. ed.) loio; Carter v. Woolfork, 71 Md. 
 283; s. c. 17 Atl. Rep. 104; Johnson v. Huling, 127 111. 14; s. c. 18 N. E. 
 Rep. 786; Russel v. Barstow, 144 Mass. 130; s. c. 10 N. E. Rep. 746; Moore 
 V. Townshend, 102 K. Y. 87; s. c. 7 N. E. Rep. 401; Kinkaid v. McGowan, 
 88 Ky. 91; s. c. 13 L. R. A. 289; Allen v. Hanks, 136 U. S. 300, "34 L. ed. 410, 
 10 Sup. Ct. Rep. 961; Peacock v. Stott, 104 N. C. 154; s. c. 10 S. E. Rep. 
 456; Louisville & N. R. Co. v. Taylor, 93 Va. 226; s. c. 24 S. E. Rep. 1013; 
 Virginia Coal & Iron Co. v. Kelly, 93 Va. 332; s. c. 24 S. E. Rep. 1021; 
 Christian v. Vance, 41 W. Va. 754; s. c. 24 S. E. Rep. 596; Beale v. Blake, 
 45 N. J. Eq. (18 Stew.) 668; s. c. 18 Atl. Rep. 300; Wood v. Nicolson, 43 
 Kan. 461; s. c. 23 Pac. Rep. 587; Watson v. Lion Brewing Co., 61 Mich. 595; 
 s. c. 28 N. W. Rep. 726; Mason v. Benedict, 43 La. Ann. 397; s. c. 8 So. Rep. 
 930; Clayton v. Barr, 34 W. Va. 200; s. c. 12 S. E. Rep. 704; Steams v. Har- 
 mon, 80 Va. 48. 
 
 ' Carberry v. W. Va. & P. R.-Co., 44 W. Va. 260, 28 S. E. Rep. 694; Smith 
 V. O'Keefe, 43 W. Va. 172, 27 S. E. Rep. 353; Christian v. Vance, 41 W. Va. 
 754, 24 S. E. Rep. 596. 
 
 3 Harr v. Shaffer, 45 W. Va. 709, 31 S. E. Rep. 905. « Idem. 
 
 5 Simpson v. Edmiston, 23 W. Va. 675; Forquerau v. Donnally, 7 W. Va. 
 114; Jones V. Dils et al., 18 W. Va. 759; Orr v. Wiley et al., 19 W. Va. 
 150; Barr v. Clayton, 29 W. Va. 256; s. c. 11 S. E. Rep. 899; Miller v. Cook 
 (111.), 10 L. R. A. 292; Burlew, Trustee, v. Quarrier et al., 16 W. Va. 108. 
 
 • McDonald v. White, 130 111. 493; s. c. 22 N. E. Rep. 599; Bright v. Kim- 
 ble, 35 W. Va. 40; s. c. 13 S. E. Rep. 63; East Hampton v. Bowman, 49 N. 
 Y. S. R. 820; s. c. 136 N. Y. 521, 32 N. E. Rep. 987; Gamble v. Hamilton, 31 
 Fla. 401; s. c. 12 So. Rep. 229; Textor v. Shipley, 77 Md. 477; s. c. 28 Atl. 
 Rep. 1060; Barrons v. Robbins, 22 Mich. 42; Gage v. Abbott, 99 111. 366; 
 Oakley v. Hulbert, 100 111. 204; Gould v. Steinberg, 105 111. 488; Moores v. 
 Townshend, 102 N. Y. 387. 
 
84 EQUITY PRINCIPI^ES. 
 
 the rule requiring possession on tlie part of the plaintiff to re- 
 move a cloud upon his title, does not apply to him who holds an 
 estate in remainder and brings suit to remove a cloud upon the 
 title to the land owned in remainder before the expiration of the 
 life tenancy.^ And where the plaintiff 's title is an equitable one, 
 possession by the plaintiff is not necessary to enable him to main- 
 tain a bill for the removal of a cloud upon his title.'' 
 
 Where the owner of land holds the legal title, but has not the 
 actual possession thereof, and another asserts an adverse claim to 
 the land, but has not actual possession of it, equity will not take 
 jurisdiction to remove a cloud upon the title at the instance of 
 the owner of the legal title, but will remit him to his action of 
 ejectment.' In the case of Steams v. Hannan, cited in the foot 
 note, Richard, J., in delivering the opinion of the court, says: 
 "Cases may and do arise in which the jurisdiction of equity 
 readily attaches to remove a cloud from the title of the true 
 owner of land. If the wrongful claim is founded in either fraud 
 or mistake, and the rightful owner is so situated that he cannot 
 bring ejectment, a court of equity will, upon a proper case made, 
 take jurisdiction and extend relief, by causing the delivery up, 
 cancellation, or rescission of agreements, securities, deeds, or other 
 instruments. On this subject, Judge Story says: 'It is obvious 
 that the jurisdiction exercised in cases of this sort is founded 
 upon the administration of a protective or preventive justice. 
 
 ■ Aiken' V. Suttle, 4 I,ea (Tenn.) 103. 
 
 = Moore v. McNutt, 41 W. Va. 695, 24 S. E. Rep. 682; Mathews v. Marks, 
 44 Ark. 436; Sloan v. Sloan, 25 Fla. 53; s. c. 5 So. Rep. 603; Johnson v. 
 Huling, 127 111. 14; s. c. 18 N. E. Rep. 786; Bryan v. Winbum, 43 Ark. 28; 
 Mason v. Black, 87 Mo. 329; Echols v. Hubbard, 90 Ala. 309, 7 So. Rep. 
 817; Lawrence v. Zimpleman, 37 Ark. 643. The authorities here cited de- 
 clare that where a party does not hold the legal title to the land, and is out 
 of possession, and, therefore, unable to maintain ejectment, he must assert 
 his rights in a court of equity. This is a well-settled principle of law against 
 which there are only a few cases to be found. 
 
 And in mafiy of the states, by virtue of statute, equity will remove cloud 
 upon vacant and unoccupied lands, whether the plaintiff is in possession or 
 not. Johnson v. Huling, 127 111. 14, 18 N. E. Rep. 786; Lundy v. Lundy, 
 131 111. 138, 23 N. E. Rep. 337; Lejeune v. Harmon (Neb.), 45 N. W. Rep. 
 630; Conant v. Buesing, 23 Pla. 559, 2 So. Rep. 882; Spithill v. Jones, 3 
 Wash. 290, 28 Pac. Rep. 531; Graham v. Fla. L. & M. Co., 33 Fla. 356, 14 
 So. Rep. 796; Roberts v. Northern P. R. Co., 158 U. S. i, 39 1,. ed. 873; Winn 
 V. Strickland, 34 Fla. 610, 17 So. Rep. 635. 
 
 3 Steams v. Harman, 80 Va. 48. 
 
CANCBHATION OF WRITTEN INSTRUMENTS. 85 
 
 The party is relieved upon the principle, as it is technically- 
 called, quia timet; that is, for fear that such agreements, se- 
 curities, deeds, or other instruments, may be vexatiously or in- 
 juriously used against him when the evidence to impeach them 
 may be lost, or that they may now throw a cloud or suspicion 
 over his title or interest, i Story's Eq., § 694.' Upon this 
 principle was decided the case of Carrol v. Brown, 28 Gratt. 
 971. But there is a wide dissimilarity between that case and 
 the case at bar. There the owner was in possession, and filed 
 his bill to set aside a deed which had been put upon record, 
 whereby the complainant's land had been wrongfully conveyed 
 to a purchaser at a tax sale. Certainly a court of equity had 
 jurisdiction in that case, because the owner was in possession and 
 could not bring ejectment against the adverse claimant, not in 
 possession, to try the question of title; and the adverse claimant 
 standing off, and content not to bring his action then against the 
 owner, as he might have done (See chap. 131, sec. 5, Code 1873), 
 thus showing that he was holding back for some sinister purpose, 
 the tendency of which was to seriously impair if not destroy the 
 market value of the owner's title. In the case at bar whatever 
 may have been the motives of either of them, and whether their 
 acts are founded in fraud or mistake, the remedy, as we have 
 shown, is complete at law. ' ' ^ 
 
 ' In this case it was contended on tlie part of the appellant that as he had 
 only the legal seizin unaccompanied by the actual possession he had no 
 right to maintain the action of ejectment as against one asserting an adverse 
 claim, but not in the actual possession. As to this contention the learned 
 judge, in his opinion, said: "This, however, is a clear misapprehension of his 
 rights under the law, and is completely answered by the fifth section of the 
 chapter (131), above referred to, by which it is provided, it is true, that the 
 person actually occupying the premises shall be named defendant in the 
 declaration; but goes further and provides that if the premises are not oc- 
 cupied, the action must be against some person exercising acts of owner- 
 ship thereon, or claiming title thereto, or some interest therein, at the com- 
 mencement of the suit." 
 
 "looking, again, to the case stated in the bill, we find that there is a per- 
 son asserting a claim or title to the premises in controversy, and that person 
 is Harman, the defendant below and appellee here. This being so, it is 
 matter of surprise how the appellant could ever, with these plain provisions 
 of the statute before him, have concluded that he was without remedy at 
 law; and such, the legal remedy, being plainly not only given by statute, 
 but exactly adapted to the particular case, it is equally plain and clear that 
 a court of equity had no jurisdiction to entertain the case. In fact if it were 
 
86 EQUITY PRINCIPLES. 
 
 § 47. Illustrations of the exercise, and refusal of, equity 
 jurisdiction relating to cloud on title to real es- 
 tate- 
 It will be perceived from what has just been said that a court 
 of equity will only interpose to quiet the title to real estate when 
 the plaintiff is without remedy at law, or where the remedy at 
 law is inadequate or insufl&cient to afford the proper relief. And 
 for the purpose of the better understanding of this rule, we here 
 subjoin some cases illustrative of its application. In the follow- 
 ing instances the court entertained the bill for relief because the 
 facts therein alleged constituted a cloud on plaintiff's title: 
 Where an executory contract for the sale of land, not entitled to 
 record for want of acknowledgment, has been illegally recorded, 
 and the terms of the contract have not been performed by the 
 purchaser, a subsequent parchaser is entitled to have such record 
 canceled and annulled;^ where it appeared that the defendant 
 had registered a mortgage on the land of the plaintiff, but it was 
 admitted] that said mortgage was a forgery, and that the plaintiff 
 had never executed it;'' where the plaintiff had sold his land with 
 covenants of general warranty reserving in the deed a vendor's 
 hen, and the same land had been sold for taxes, but no tax deed 
 had been made at the time when the suit was brought;' where 
 one is asserting a claim to or rights in land under a deed that 
 created in the defendant a determinable fee, which has ceased 
 and determined;* where a married woman has made a deed for 
 her separate real estate without joining her husband in the deed 
 and has died intestate, and suit has been brought by her husband 
 as tenant by the curtesy, and her heirs at law;* where the de- 
 fendant's claim arises from a tax deed, and the taxes had, in 
 
 otherwise the great purpose for which the action of ejectment has been 
 given— that, among others, of settling disputed questions of title and bound- 
 ary — ^would be defeated, and the action rendered far less efficacious than it 
 was intended to be, especially in Virginia." Our chapter on the law of 
 ejectment is taken from that of the State of Virginia; and see what is said as 
 to this matter by Judge Green in Postlewaite v. Wise, 17 W. Va. i. See also 
 note in Hogg's Pleading and Forms at pages 127 and 128. 
 
 ' Walter v. Hartwig, 106 Ind. 123; s. c. 6 N. E. Rep. 5. 
 
 ' Byerly v. Humphrey, 95 N. C. 151. 
 
 3 Jackson v. Kittle, 34 W. Va. 207; s. c. 12 S. E. Rep. 484. 
 
 * Slegel V. Herbine (Pa.), 15 L. R. A. 547; s. c. 23 Atl, Rep. 996. 
 
 s Austin V. Brown, 37 W. Va. 634; s. c. 17 S. E. Rep. 207. 
 
CANCBI,I,ATI0N OF WRITTBN INSTRUMENTS. 87 
 
 fact, been paid before the sale;^ where an illegal tax deed has 
 been obtained for the land of the plaintiff;^ where a deed is exe- 
 cuted by the grantor and is placed in the hands of a stranger, to 
 be held by him until the grantee does a particular thing, and 
 then to be delivered to him, and which, by accident or mistake, 
 is placed upon record, without ever having been delivered to the 
 grantee;' where a deed has been forged, and contains a proper 
 certificate of acknowledgment and has been recorded;* where 
 land has been conveyed in trust for the payment of debts, and 
 it has been sold for taxes, and a tax deed has been made, and 
 suit has been brought by the trustee to cancel such deed;^ where 
 a mortgage debt has been paid before its maturity, and the mort- 
 gagee refuses to execute a formal release for record, unless other 
 loans secured by other mortgages on other lands, which in point 
 of fact are insufficient security, should also be paid, and the 
 mortgagor has brought suit to compel the execution of a formal 
 release;' where land has been conveyed in trust to pay all the 
 grantor's debts, not specifying them, and a judgment creditor 
 asserts the claim of his judgment against the trust property, 
 when in fact the judgment has been paid off;' where the plaintiff 
 seeks to enjoin the defendant from obtaining a deed for land 
 alleged to have been sold for taxes, when in fact the de- 
 fendant did not purchase the land at tax sale;* where defendant's 
 claim of title is predicated upon an ancestor's deed, that was 
 never delivered, and the plaintiffs are his heirs at law.' And 
 a court of equity will cancel an abandoned lease as a cloud 
 upon title.^" 
 
 In the instances hereafter given the court declined to entertain 
 the bill for relief on the allegations thereof, that the facts 
 disclosed created a cloud on the title: Where there has been filed 
 in the registry of deeds, a written notice by a grantor, that the 
 deed was obtained by fraud, and that any transfer thereunder 
 
 " Gage V. Rohrback, 56 111. 262. 
 
 ' Lee V. Ruggles, 62 111. 427; Simpson v. Edmiston, 23 W. Va. 675. 
 
 ' Stanley v. Valentine, 79 111. 544. 
 
 ■• Hooper v. Devaughn, 43 W. Va. 447, 27 S. E. Rep. 251; Remington Paper 
 Co. V. O'Daugherty, 16 Hun. (N. Y. ) 594. 
 
 5 Burlew v. Quarrier, 16 W. Va. 108. " Brown v. Stewart, 56 Md. 421. 
 
 1 Ambler v. Leach, 15 W. Va. 677. ' Koon v, Snodgrass, 18 W. V. 32. 
 
 » Salisbury v. Salisbury, 49 Mich. 306. 
 
 "> Crawford v. Ritchey, 43 W. Va. 252; Hukill v. Guffey, 37 W. Va. 425; 
 Hukill V. Myers, 36 W. Va. 639. 
 
88 EQUITY PRINCIPI<BS. 
 
 would be disputed;^ where one is in possession of land against 
 another who holds the legal title to the land and a claim for a 
 portion of the purchase money;'' where the lands are improved 
 and occupied by the adverse party, ejectment being the remedy;' 
 where the cloud sought to be removed, has been created by the 
 complainant's own grant or conveyance.* 
 
 § 48. Cancellation of instruments because of fraud — 
 
 In matters of fraud the jurisdiction of a court of equity is 
 coeval with its existence.^ It is difficult to define the meaning of 
 fraud in the extensive signification in which this term is used by 
 our courts of equity, because of the manifold shapes and forms 
 which it may assume in the various transactions and dealings of 
 mankind with one another.* But be this as it may, the follow- 
 ing are some of the definitions of fraud given by the courts and 
 authors: "Fraud consists in deception practiced in order to in- 
 duce another to part with property or surrender some legal right 
 and which accomplishes the desired end."' "Fraud, in the sense 
 of a court of equity, properly includes all acts, omissions and 
 concealments, which involve a breach of legal or equitable duty, 
 trust or confidence, justly reposed, and are injurious to another, 
 or by which an undue and unconscientious advantage is taken of 
 another. ' " "Where a party, intentionally, or by design, misrepre- 
 sents a material fact, or produces a false impression, in order to 
 mislead another, or to obtain an undue advantage of him, there 
 is a positive fraud in the fullest sense of the term."' 
 
 The rule is so well settled that a contract or other instrument 
 procured through fraud of any kind may be canceled or re- 
 scinded, at the instance of the party injured, and the causes are 
 so diversified and numerous wherein relief is afforded on this 
 ground, that we shall not attempt to lay down any general rules 
 governing in such cases, except as they are hereafter considered 
 under the various sections of this work in which the particular 
 
 " First African M. E. Church v. Brown, 147 Mass. 296; s. c. 17 N. E. Rep. 549. 
 ' Northrop v. Andrews, 39 Kan. 567; s. c. 18 Pac. Rep. 510. 
 3 Gage V. Abbott, 99 111. 366. * Bresler v. Pitts, 58 Mich. 347. 
 
 s I Story Eq. Jur. \ 185. ''Idem, | 186. 
 
 'Cooley on Torts, 474; Alexander v. Church, 53 Conn. 561; s. c. 4 Ati. 
 Rep. 103. 
 ' I Story Eq. Jur. ? 185. 
 9 Barnard v. Roane Iron Co., 85 Tenn. 139; s. c. 2 S. W. Rep. 21. 
 
CANCELLATION OF WRITTEN INSTRUMENTS. 89 
 
 phases of fraud are noticed as a specific ground of equitable 
 jurisdiction.^ The marked and solitary exception to this rule is 
 that under its general and inherent jurisdiction, a court of equity 
 has no power to entertain a suit for the purpose of canceling a 
 will on the ground that it was procured by fraud.* 
 
 § 49. Cancellation of instruments because of mistake — 
 
 In order that a mistake may come within the cognizance of a 
 court of equity, it must be shown to be: First, material or the 
 moving cause of the complaining party's action; second, mutual, or 
 shared in by both parties to the transaction; third, unintentional; 
 and yburiA, free from negligence.' But a mistake, to be reliev- 
 able must be one of fact, as agreements made and acts done 
 under a mistake of law, are generally valid and obligatory.* 
 Still, if a conveyance or act is made or done under a mis- 
 take of law or a misstatement thereof, accompanied by fraud 
 in any form, such as misrepresentation or concealment of 
 facts, imposition, undue influence, or misplaced confidence, or 
 advantage in any way has been taken of one's ignorance of law to 
 mislead him, or where there is a relation of trust and confidence, 
 equity will afford relief.' 
 
 A mistake of a foreign law, however, is regarded as a mistake of 
 fact;* and where the mistake is one both of law and fact, though 
 the latter is the result of the former, relief will be granted when 
 justice and equity require it.' In order to cancel or rescind a 
 deed or other instrument because of a mistake in its execution, 
 
 ' Pierce v. Brown, 7 Wall. 205, 19 1,. ed. 134; Smith v. Richards, 13 Pet. 
 26, 10 L. ed. 42; Shenandoah "Valley R. Co. v. Dtmlap, 86 Va. 346; s. c. 10 
 S. E. Rep. 239; Kome v. Korne, 30 W. Va. 17; s. c. 3 S. E. Rep. 17; Fish- 
 bume V. Ferguson's Heirs, 84 Va. 87; s. c. 4 S. E. Rep. 575; Bamum v. 
 Bamum's Ex'r, 83 Va. 365; s. c. 5 S. E. Rep. 372; Curlett v. Newman, 30 
 W. Va. 182; s. c. 3 S. E. Rep. 578; Houghton v. GraybUl, 82 Va. 573; see ante, 
 I 38 (3), {e), if), post, II 166-180, 181-198. See Pom. Eq. Jur. (2d. ed.), 
 ?? 872, 974; Chase v. Miller, 88 Va. 791; s. c. 14 S. E. Rep. 545; Rorer Iron 
 Co. V. Trout, 83 Va. 397; s. c. 2 S. E. Rep. 713. 
 
 ' I Pomeroy, Eq. JiU". (2d ed.), I 913. 
 
 3 Bluestone Coal Co. v. Bell, 38 W. Va. 297; s. c. 18 S. E. Rep. 493, es- 
 pecially at p. 496. 
 
 ■•Harmer v. Price, et al., 17 W. Va. 523. 
 
 5 Schutler v. Brandfass, 41 W. Va. 201, 23 S. E. Rep. 808. 
 
 ' Norton v. Harden, 32 Am. Dec. 1326; s. c. 15 Maine; 45. 
 
 ' Freeman v. Curtis, 81 Am. Dec. 564; s. c. 51 Maine, 140. 
 
go EQUITY PRINCIPLES. 
 
 the proof must be very strong and clear. ^ It must not be vague, 
 weak and uncertain.' 
 
 And where a party desires relief in equity on the ground 
 of mistake, the specific fact or facts constituting the mistake, 
 should be alleged so as to make the matter an issue in the cause, 
 in order that the court may pass judicially upon his right to equi- 
 table relief upon the grounds alleged and the evidence in support 
 thereof.' 
 
 Parol evidence is admissible to prove that a contract or other 
 writing was made or procured by mistake, though the allegation 
 thereof is denied in the answer.* But the verbal declarations 
 of a testator are inadmissible to show that he made a mistake in 
 the manner in which he intended to execute his will.^ 
 
 § 50. Cancellation of instruments because of fraudulent 
 concealment — 
 
 A concealment to justify the rescission of a contract for fraud, 
 must be a willful suppression of such facts in regard to the sub- 
 ject-matter as the party making it is bound to disclose.* 
 
 § 51. Cancellation of contracts because of inadequacy of 
 consideration — 
 Mere inadequacy of consideration which is a species of con- 
 structive fraud ' is not of itself sufficient to justify a court of 
 
 ' Weidebush v. Hartenstein et al., 12 W. Va. 760; Allen v. Yeater, 17 W. 
 Va. 128; Fishback v. Ball, 34 W. Va. 480; s. c. 12 S. E, Rep. 856; Penny- 
 Ijaker V. Laidley, 33 W. Va. 624; s. c. ii S. E. Rep.jg. 
 
 » Weidebush v. Hartenstein, 12 W. Va. 760. 
 
 ' Burley v. Weller et al., 14 W. Va. 264, 273. See further on this subject, 
 post, U 342-347- 
 
 * Allen V. Yeates, 17 W. Va. 128. 
 
 sRedf. Am. Cas. Wills, 178; i Jarman Wills (5th Am. ed.), 717 et seq.; 
 Idem, 714; I Story Eq. Jur., ? 179 et seq.; Malone's Adm'r et al. v. Hobbs 
 et al., I Robinson, 346, 380; 16 Wend. 331; i Redf. on Wills, 449; i Jarman 
 on Wills, 721; Couch v. Eastham, 27 W. Va. 796. 
 
 « Rison V. Newberry, 90 Va. 530, 18 S. E. Rep. 916; Bank v. Campbell, 78 
 Va. 455. Where parties deal, however, at arm's length, and there is no fi- 
 duciary relation between them, mere silence is not suflBcient to set aside an 
 instrument of purchase, sale or other contract. Pennybaker v. Laidley, 33 
 W. Va. 624; s. c, II S. E. Rep. 39. See />ost, ? 170, where the subject is 
 fully considered. 
 
 ' 2 Pomeroy, Eq. Jur., §? 925, 926. 
 
CANCai,I<ATION OF WRITTBN INSTRUMENTS. 9 1 
 
 equity in setting aside a deed or other contract/ unlfess the in- 
 adequacy be such as to justify the presumption of fraud or col- 
 lusion; and to justify such presumption from inadequacy alone, 
 it must be so strong and manifest such an inadequacy as to shock 
 the conscience and confound the judgment of any man of common 
 sense.' In determining the question of inadequacy of considera- 
 tion the date of the instrument must be looked to, and if there 
 was not then such inadequacy of price as to authorize the grant- 
 ing of relief, none can be shown or considered which may arise 
 from subsequent enhancement, depreciation or change of circum- 
 stances.' 
 
 Where inadequacy of price does not stand alone as the ground 
 upon which relief in equity is sought, but is accompanied by 
 other inequitable incidents, such as ' 'concealments, misrepresen- 
 tations, undue advantage, oppression on the part of the one who 
 obtains the benefit, or ignorance, weakness of mind, sickness, 
 old age, incapacity, pecuniary necessity, and the like, on the 
 part of fhe other," the court may easily be prevailed upon to 
 grant relief to the injured party.* But it will not do to say 
 that such facts afford an absolute right to the interposition of 
 equity, but they throw the heavy burden of proof upon the party 
 seeking to enforce the transaction, or claiming the benefits of it, 
 to show that the other acted voluntarily, knowingly, intention- 
 ally, and deUberately, with full knowledge of the nature and 
 effects of his acts, and that his consent was not obtained by any 
 oppression, undue influence, or undue advantage taken of his 
 condition, situation or necessities.' 
 
 Under this section may be placed those cases of failure to per- 
 form a collateral agreement as the main consideration of a con- 
 veyance, though the agreement may lie in parol. Thus where 
 one conveys land to another in consideration that the grantee 
 will support the grantor or some third party, and the grantee is 
 placed in possession, and then fails or refuses to support the 
 party provided for, and sells and conveys the land and thus ren- 
 
 » Jarrett et al. v. Jarrett et al., ii W. Va. 584. 
 
 ' Bradford v. McConihay, 15 W. Va. 732. In this case it is held that one- 
 lialf the estimated value is not such inadequacy as to authorize the cancella- 
 tion of the deed. See Jones v. Degge, 84 Va. 685; s. c. 5 S. E. Rep. 799; Pen- 
 nybaker v. Laidley, 33 W. Va. 624; s. c. 11 S. E. Rep. 39. 
 
 3 Pennybaker v. Laidley, 33 "W. Va. 624; s. c. 11 S. E. Rep. 39. 
 
 < 2 Pomeroy, Eq. Jur. (2d ed.), \ 928. ^Idem. 
 
92 EQUITY PRINCIPLES. 
 
 ders any attempt to enforce the agreement ineffectual, equity will 
 rescind the contract and cancel and set aside the deed.^ 
 
 § 52. Cancellation of instruments because of misrepre- 
 sentation — 
 
 Where a contract or bargain has been entered into, or any in- 
 strument in writing procured through or by means of misrepre- 
 sentation or fraudulent or false statements, a court of equity will 
 cancel or rescind such contract, agreement or instrument.^ Thus, 
 where a corporation, by false representations of material facts, 
 induced a person to become a subscriber to its capital stock, and 
 issued to him certificate's therefor, he may have such subscrip- 
 tion and certificate canceled, and, as incident to that relief, re- 
 cover the amount of assessments paid thereon.^ 
 
 In I/Owe V. Trundle,* the court says: "If one represents as 
 true what is false in such a way as to induce a reasonable man to 
 beUeve it, and the misrepresentation is meant to be acted upon, 
 and he to whom the representation is made, believing it to be 
 true, acts on it, and thereby sustains damage, there is ground 
 to support an action of deceit at law and to found a rescission of 
 the transaction in equity." 
 
 It matters not whether the party making the representation 
 knew it to be false or not, so the other party relied and acted 
 on it, as he had a right to do without further inquiry. '■ But un- 
 less the false or fraudulent representations are relied on by the 
 injured party, they afford no ground for equitable relief.* 
 
 § 53. Cancellation of instruments because of undue in- 
 fluence — 
 
 An examination of the authorities will show that the question 
 
 ' Wilfong V. Johnson, 41 W. Va. 283, 23 S. E. Rep. 730. 
 
 ' Rorer Iron Co. v. Trout, 83 Va. 397; s. c. 2 S. E. Rep. 713; Grym v. 
 Bird, 32 Gratt. 302; Linhart v. Foreman, 77 Va. 540; I<owe v. Trundle, 78 
 Va. 65; Brown v. Rice, 26 Gratt. 473; McMullen v. Saunders, 79 Va. 356; 
 Pennybaker v. Laidley, 33 W. Va. 624; s. c. 11 S. E. Rep. 39. 
 
 ^ McClanahan v. Ivanhoe Land & Improvement Co., 96 Va. 124; 30 S. E. 
 Rep. 450. See post, § 168, as to what misrepresentations amount to fraud. 
 
 ♦ 78 Va. 65. 
 
 5 Brown v. Rice, 26 Gratt. 473; McMullen v. Saunders, 79 Va. 356. 
 
 « Pennybaker V. Laidley, 33 W. Va. 624; s. c. 11 S. E. Rep. 39. For a 
 further consideration of the subject-matter of this section, see post, H i68, 
 169. 
 
CANCELLATION OF WRITTEN INSTRUMENTS. 93 
 
 of undue influence usually arises in matters of contest touching 
 the execution and validity of deeds and wills. "^ But any act done 
 or instrument procured by this means may be avoided in a court 
 of equity.^ 
 
 Influence, to be undue in the sense that a court of equity will 
 interpose to relieve from its effects, must be such as to overcome 
 the free agency of the party amounting to moral or physical co- 
 ercion operating upon him at the time the act was done or the 
 instrument made.' 
 
 It is not essential to the establishment of the charge of undue 
 influence that its active and visible agency should be asserted 
 upon its victim or object of coercion, so as to be susceptible of 
 positive proof, at the very point of time when the act complained 
 of was done. It is sufficient if the effect of this agency remains 
 with the party and operates upon him at the time the act was 
 done or the instrument was made, and was the effective means of 
 bringing it about.* It is a species of fraud, ^ and so numerous 
 and diversified are the instances wherein it has been exerted, and 
 so wide the field wherein it may work, by reason of the condi- 
 tion and circumstances of the person influenced, that courts of 
 equity have not fettered themselves by the adoption of any fixed 
 or determinate rules prescribing the bounds of legitimate influ- 
 ence, or defining that which is undue.* The effects of all acts 
 
 " Forney v. Ferrell, 4 W. Va. 729; Deem v. Phillips, 5 W. Va. 168; Dinges 
 V. Branson, 14 W. Va. 100; McMechen v. McMechen, 17 W. Va. 683; Kerr 
 V. Lunsford, 31 W. Va. 659, 8 S. E. Rep. 493; Coffman v. Hedrick, 32 W. 
 Va. 119, 9 S. E. Rep. 65; Delaplain v. Grubbs, 44 W. Va. 612, 30 S. E. Rep. 
 201; Davis V. Strange, 86 Va. 193, 11 S. E. Rep. 406; Furlong v. Sanford, 
 87 Va. 506, ,12 S. E. Rep. 1048; Fishburn v. Ferguson, 84 Va. 87, 4 S. E. 
 Rep. 575; Jones v. McGruder, 87 Va, 360, 12 S. E. Rep. 792. 
 
 = 2 Pomeroy, Eq. Jur. (2d ed.), ? 951. 
 
 3 Forney v. Ferrell, supra; Delaplain v. Grubbs, supra; Elkinton v. Brick, 
 44 N. J. Eq. (17 Stew.) 154, i L. R. A. 161; Frosty. Dingier, 118 Pa. St. 
 259; Biggerstaff v. Biggerstaff, 180 111. 407, 54 N. E. Rep. 333. 
 
 * Steadman v. Steadman, (Pa.) 14 Atl. Rep. 406-410; Tyler v. Gardiner, 
 35 N. Y. 559; Redf. Am. Cas. on Wills, 451, and especially at pages 469 and 
 470; Whelan v. Whelan, 3 Cowen, 527, 8 Law ed., 215; Miller's Estate, 179 
 Pa. St. 645; Overall v. Bland, 11 Ky. L. Rep. 371; Hiss v. Weik, 78 Md. 
 439; Forney v. Ferrell, supra; Taylor v. Wilbum, 20 Mo. 306; Redf. Am. 
 Cas. on Wills, 412; Hartman v. Strickler, 82 Va. 225. 
 
 5 2 Pomeroy, Eq. Jur. (2d ed.), ? 951. 
 
 ' Davis V. Strange, supra; Redf. Am. Cas. on Wills, 521-524, note; Elkin- 
 ton v. Brick, supra; Smith v. Henline, 174 111. 184, 51 N. E. Rep. 227. 
 
94 EQUITY PRINCIPLBS. 
 
 must depend upon the relations of tlie parties to them, and the 
 character, strength and condition of each, and be determined by 
 the application of sound sense to each given case.^ Thus the 
 same or similar acts may be trifling and of no importance in the 
 case of one person and overmastering in the case of another.'' 
 Notwithstanding, however, this absence of rules, there are a few 
 general principles that the courts have found safe and useful in 
 applying as mere indicia of the character of influence in a given 
 case, or, more properly speaking, as simple rules of evidence to be 
 applied in determining the question of undue influence. Thus, 
 it is a well-settled doctrine that extreme kindness and attention 
 shown by those interested will not constitute undue influence; ' 
 nor suggestions and advice addressed to the judgment.* But any 
 importunity which can not be resisted is, or may amount to, un- 
 due influence.^ 
 
 It is the general rule that he who alleges undue influence 
 must prove it, if the charge be denied by the pleadings putting 
 the matter in issue.* While, on the other hand, if a fiduciary or 
 confidential relation exists between one person and another, and 
 the former has obtained any material or substantial benefit or ad- 
 vantage from the latter under a will, deed or other instrument, 
 which is sought to be set aside on the charge of undue influence, 
 equity will presume, as a general rule, confidence reposed and 
 undue influence exerted, and the burden of proof, to show that 
 no such influence was used or exerted, is upon him who claims 
 the benefit or advantage derived from the instrument.'' 
 
 ' Elkinton v. Brick, supra; Lynch v. Clements, 24 N. J. Eq. 431 ; Redf. 
 Am. Cas. on Wills, 733; Hartman v. Strickler, supra. 
 
 ' Idem. 
 
 3 Nicholas v. Kershner, 20 W. Va. 251; Floyd v. Floyd, 49 Am. Dec! 6z6; 
 St. Leger's Appeal, 91 Am. Dec. 735; Gilbert v. Gilbert, 58 Am. Dec. 268; 
 Hale V. Cole, 31 W. Va. 576, 8 S. E. Rep. 516; Delaplain v. Grubb, 44 W. 
 Va. 612, 30 S. E. Rep. 201. 
 
 * Delaplain v. Grubb, supra; Wllcoxon v. Wilcoxon, 165 111. 454, 46 N. E. 
 Rep. 369; Miller v. Miller, 3 Serg. & R. 267 
 
 5 Elkinson v. Brick, supra. 
 
 « Stewart v. Stewart, 56 N. J. Eq. 761, 40 Atl. Rep.438; Townsbn v. Moore, 
 25 Wash. Iv. Rep. 706, 11 App. D. C. 377; Riley v. Sherwood, 144 Mo. 354, 
 45 S. W. Rep. 1077; Salter v. Ely, 56 N.|J. Eq. 357. 39 Atl. Rep. 365; Morton 
 V. Heidom, 135 Mo. 608, 37 S. W. Rep. 504. 
 
 ' Pomeroy, Eq. Jur. (2d ed.) § 951; Doyle v. Welch, 100 Wis. 24, 75 N. W. 
 Rep. 400; Patten v. Cilley, 67 N. H. 520, 42 Atl. Rep. 47; Re Barney's Will, 
 70 Vt. 352, 40 Atl. Rep. 1027; Disch v. Timm, loi Wis. 179, 77 N. W. Rep, 
 
CANCELI.ATION OF WRITTEN INSTRUMENTS. 95 
 
 Proof of acts of undue influence exerted, both before and after 
 the time when the instrument in question was made, may be re- 
 ceived in evidence.^ 
 
 § 54. Cancellation of instrument because of the fiduciary 
 relationship of the party in whose interest it 
 operates — 
 
 Any one, who occupies a fiduciary relation to another, is bound 
 not to exercise for his own benefit and to the prejudice of the 
 party to whom he stands in such relation, any of the powers or 
 rights or any knowledge or advantage of any description, which 
 he derives from such confidential relation.^ A purchase made or 
 deed procured while actually holding such relation, by the fidu- 
 ciary of the trust property, is voidable at the option of the party 
 to whom he stands in such relation, although the fiduciary may 
 have given an adequate price for the property and gained no ad- 
 vantage whatever.^ But to authorize the cancellation of a deed 
 
 196; Miller v. Miller, 187 Pa. St. 572, 41 Atl. Rep. 277; Messner v. Elliott, 
 184 Pa. St. 41, 39 Atl. Rep. 46; Hase v. Beilstein, 179 Pa. St. 560, 36 Atl. 
 Rep. 336; Thomas v. Turner, 87 Va. i, 12 S. E. Rep. 149; Chappell v. Trent, 
 90 Va. 849, 19 S. E. Rep. 314; Davis v. Strange, supra; White v. Ross, 160 
 111. 56, 43 N. E. Rep. 336; Ross v. Payson, 160 111. 349, 43 N. E. Rep. 399; 
 Morris v. Stokes, 21 Ga. 552, Redf. Am. Cas. on Wills, 200. 
 
 ' Forney v. Ferrell, supra; Shailer v. Bumstead, 99 Mass. 112, Redf. Am. 
 Cas. on Wills, 397. 
 
 = Newcombe et al v. Brooke, 16 W. Va. 32, 58. 
 
 3 Newcombe et al. v. Brooke et al., supra: "The principle upon which 
 these cases all proceed in laying down the broad proposition that the pur- 
 chase by a fiduciary of trust property will be set aside at the instance of the 
 cestui que trust or any one occupying the position similar to that of a cestui 
 que trust, without any inquiry as to the adequacy of price or fairness of the 
 transaction, is thus stated by Lord Eldon, in Ex Parte Lacey, 6 Ves. 627: 
 The rule is founded on this: That though you may see in a particular case 
 that the trustee has not made advantage, it is utterly impossible to examine 
 upon satisfactory evidence in the power of the court (by which I mean in the 
 power of the parties), in ninety-nine cases out of a hundred, whether he has 
 made advantage or not. Suppose a trustee buys an estate, and, by the 
 knowledge acquired in that character, discovers a valuable coal mine under 
 it, and locking that up in his own breast, enters into a contract with his 
 cestui que trust. If he choose to deny it, how can the court try that against 
 that denial? The probability is that a trustee who once conceived such a 
 purpose will never disclose it, and the cestui que trust will be effectually de- 
 frauded." Green, J., in Newcomb V. Brooks, i'a^ra. See Harrison v. Man- 
 son, 95 Va. 593, 29 S. E. Rep. 420. 
 
96 EQUITY PRINCIPLBS. 
 
 or other instrument because of the relation of the parties to the 
 trust property embraced in the deed, the relation must be a fidu- 
 ciary one, and not that of close kinship or intimate] friendship, 
 but one which clothes the party with some power or trust touch- 
 ing the property with which he deals. ^ 
 
 § 55. Cancellation of instrument because of mental in- 
 capacity of party executing it — 
 
 We cannot enter upon an extended consideration of the subject 
 of mental incapacity in a treatise like this, but can only call at- 
 tention to some of the general principles underlying this branch 
 of the law. These principles are such as must control in the 
 questions arising here, and will be found of the first importance 
 in the trial of cases involving mental unsoundness. 
 
 Our code declares that the words insane person shall include 
 every one who is an idiot, lunatic, non compos or deranged.* An 
 idiot is a person destitute of ordinary intellectual powers, from 
 any cause, and dating from any time, but in common use, a per- 
 son without understanding from birth; while a lunatic is a person 
 of any form of unsoundness of mind other than idiocy — mental 
 derangement with intermittent, strictly periodically intermittent, 
 lucid intervals. The phrase non compos applies to both idiots 
 and lunatics, while the word deranged embraces all except the 
 natural-born idiot.' Senile dementia is that form of insanity in 
 the old, marked by slowness and weakness, indicating the break- 
 ing down of the mental powers, in advance of bodily decay.* It 
 really needs no citation of cases to support the principle or doc- 
 trine that any one who is laboring under any form of insanity 
 cannot make a valid contract or other instrument in writing, or 
 even a parol agreement, and if such act is done by one thus 
 affected, a court of equity, as a general rule, will lend its aid to 
 cancel or annul the same.^ 
 
 Thus equity will decree the cancellation and delivery up of a 
 promissory note given by one who is shown to be mentally inca- 
 
 ' Curtlett V. Newman et al., 30 W. Va. 182; s. c. 3 S. E. Rep. 578. For a 
 further consideration of the subject of this section, see post, I 170; also ante, 
 ?§ 19. 20- ■ 
 
 = Code, chap. 13, sec. 17, clause 14, p. 124. 
 
 3 Hiett V. ShuU, 36 W. Va. 563; s. c. 15 S. E. Rep. 146. ■• Idem. 
 
 5 Seepost, I 171; 2 Pomeroy, Eq. Jut. (2d ed.), J 946. 
 
CANCELLATION OF WRITTEN INSTRUMENTS. 97 
 
 pable of transacting such business.^ And equity will cancel 
 contracts made by persons of great mental weakness, though not 
 amounting to absolute disqualification, when the contracts are 
 grossly unjust or inequitable to such persons,^ while it would not 
 for such cause set aside vahd contracts made by parties fully 
 competent to contract.' 
 
 § 56. Presumptions as to sanity — 
 
 The law presumes that all persons are sane until the contrary 
 is shown; and therefore the law places the burden of proving in- 
 sanity upon him who alleges it, except in the case of wiUs.* By 
 reason of this principle, the presumption is that the grantor in a 
 deed or other instrument, except as to wills, was of competent 
 mental soundness at the time of its execution.^ At common law 
 no will could be made, and the alteration thus made in the com- 
 mon law, allowing a person of sound mind to dispose of his 
 property by will, changes the law as to the presumption of 
 sanity with reference to the execution of wills,* and throws the 
 burden of the proof of soundness of mind upon him who seeks to 
 sustain the will.'' 
 
 § 57- W^hat is a sufHcient mental soundness to make a 
 valid contract or will — 
 
 As to the execution of contracts, the rule is that the party 
 must have reason, memory and will power enough to do the act 
 in question fairly and intelligently.' That is, he must possess 
 memory, vmderstanding and mind sufficient to know and appre- 
 ciate the nature, character and effect of the particular act in 
 which he is engaged.' If this degree of understanding is pos- 
 sessed by a party, his agreements or conveyances are valid and 
 
 ' Hiett V. Shull, supra. 
 
 ' Kome V. Kome, 30 W. Va. i, 3 S. E. Rep. 17. 3 idem. 
 
 * Hiett V. Shull, 36 W. Va. 563; s. c. 15 S. E. Rep. 146; Nicholas et al. v. 
 Kershner, 20 W. Va. 251; McMechen et al. v. McMechen, 17 W. Va. 684. 
 
 5 Snodgrass V. Knight, 43 W. Va. 294, 27 S. E. Rep. 233; Buckey v. Buckey, 
 38 W. Va. 168, 18 S. E. Rep. 383. 
 
 « Nicholas et al. v. Kershner et al., supra. n Idem. 
 
 8 Hiett V. Shull, 36 W. Va. 563, 15 S. E. Rep. 146. 
 
 ? Delaplain v. Grubb, 44 W. Va. 612, 30 S. E. Rep. 201; Parnsworth v. 
 Noffsinger, 00 W. Va. 000, 33 S. E. Rep. 246; EUwood v. O'Brien, 105 Iowa, 
 239, 74 N. W. Rep. 740. 
 
 7 
 
98 BQUITY PRINCIPLES. 
 
 binding upon him/ and the mere weak-mindedness or mental enr- 
 feeblement of the party, whether produced by old age, sickness,, 
 or other infirmity, when not accompanied by any inequitable in- 
 cidents, will not be sufficient to defeat his contracts." But in a. 
 case of real mental weakness, the presumption is against the va- 
 lidity of the transaction, and the burden of showing its fairness; 
 and the capacity of the other party rests upon him who claims, 
 the benefit of the conveyance or contract.' 
 
 While the authorities hold that it requires less capacity to make- 
 a will than it does to make a deed,* the practical difference is of 
 but Uttle consequence or importance. The degree of mental 
 capacity required to make a will, as laid down by our supreme 
 court, is that the party understand the nature of the business in. 
 which he is engaged, has a recollection of the property of which ■ 
 he makes disposition, and the objects of his bounty, and knows, 
 and understands the manner in which he wishes to divide it.' 
 The rule as thus announced, is the one which obtains in nearly, 
 if not quite all, of the states.* 
 
 The time to be looked to in determining the question of the- 
 mental capacity of the testator is the time when the will was ex- 
 ecuted;' but the condition of his mind, both before and after the 
 
 ' 2 Pomeroy, Eq. Jur. (2d ed.) ? 947. 
 
 ' Idem; Buckey v. Buckey, 38 W. Va. 168, 18 S. E. Rep. 383; Jarrett v. 
 Jarrett, 11 W. Va. 584; Kerr v. Lnnsford, 31 W. Va. 659, 8 S. E. Rep. 493;, 
 Perry v. Pearson, 135 111. 218, 25 N. E. Rep. 636; Delaplain v. Gmbb, 44 W.. 
 Va. 612, 30 S. E. Rep. 201. 
 
 3 2 Pomeroy, Eq. Jur. (2d ed.), § 947. 
 
 * Jarrett v. Jarrett, supra; Kerr v. Lunsford, supra. 
 
 s Nicholas v. Kershner, 20 W. Va. 251; Martin v. Thayer, 37 W. Va. 38, i&' 
 S. E. Rep. 489; Kerr v. Lunsford, supra. 
 
 « RUey V. Sherwood, 144 Mo. 354, 45 S. W. Rep. 1077; Roller v. Kling, 150 
 Ind. 159, 49 N. E. Rep. 948; King v. King, 19 Ky. L. Rep. 969, 42 S. W. 
 Rep. 347; Young v. Miller, 145 Ind. 652, 44 N. E. Rep. 757; Re Halbert's- 
 Will, 73 N. Y. S. R. 434, 37 N. Y. Supp. 757; Hudson v. Hugan, 56 Kan. 
 152, 42 Pac. Rep. 701; Westcott v. Sheppard, 51 N. J. Eq. (6 Dick.) 315; Re; 
 Pitt's Estate (Wis.), 55 N. W. Rep. 149; Bulger v. Ross (Ala.), 12 So. Rep. 
 803; Sprattv. Spratt, 76 Mich. 384; Prather v. McClelland, 76 Tex. 574, 13. 
 S. W. Rep. 543; Tucker v. Sandige, 85 Va. 546, 8 S. E. Rep. 650; Chrisman 
 V. Chrisman, 16 Or. 127, 18 Pac. Rep. 6; Guild v. Hull, 127 111. 523, 20 N. E. 
 Rep. 665; McCulloch v. Campbell; 49 Ark. 367, 5 S. W. Rep. 590; Shaver v. 
 McCarthy, 110 Pa. St. 339, 5 Atl. Rep. 614; Hall v. Hall, 18 Ga. 40. 
 
 1 Kerr v. Lunsford, supra; Jarrett v. Jarrett, supra; Terry v. Buffington,., 
 \x Ga. 337. 
 
CANCBI,LATION OF WRITTEN INSTRUMENTS. 99 
 
 execution of the instrument, is proper to be considered in de- 
 termining what his mental condition was at the time it was ex- 
 ecuted.^ 
 
 § 58. Cancellation of contracts and agreements on the 
 ground of infancy — 
 
 Where a party makes a deed or enters into a contract while he 
 is an infant, he may avoid it at his pleasure upon attaining the 
 age of majority, or if he choose so to do, he may then confirm it.' 
 There is but one single contract that is binding on an infant, and 
 that is an implied contract for necessaries furnished him, and on 
 the other hand there is but one single act of an infant that is ab- 
 solutely void, and that is the giving of a power of attorney;' with 
 these exceptions all other contracts of an infant, whether execu- 
 tory or executed, are voidable at the option of the infant, after 
 he attains the age of twenty-one years.* Hence, a suit may be 
 brought to cancel a deed or other contract made by an infant, 
 either by the infant himself upon attaining full age, or by the 
 adult himself, upon the infant's disaffirmance thereof, when the 
 infant subsequently claims to affirm it.^ 
 
 § 59. Cancellation of contracts and other instruments on 
 the ground of drunkenness — 
 
 It is settled by abundant authority that when a contract or 
 other agreement is made, or other act is done, when the party is 
 in a state of intoxication, so as to deprive him of the exercise of 
 his understanding, it is voidable; and the party for that cause 
 may avoid it, although the intoxication was voluntary, and not 
 procured through the circumvention of the other party.' It is 
 not sufficient in order to avoid or cancel a contract or other in- 
 strument, for drunkenness, that the party was under the influ- 
 ence of liquor at the time of its execution, but the intoxication 
 must have been so extreme that the party affected was deprived 
 of reason and judgment and did not know what he was doing. ^ 
 
 » Jarret v. Jarret, supra; Terry v. Buffington, supra. 
 
 » Gillispie et ux. v. Bailey et al., 12 W. Va. 70, 88, 89. 
 
 3 Idem. * Idem. 
 
 5 McCarty V. Woodstock Iron Co., 12 L. R. A. 136. 
 
 « Loftus V. Maloney, 89 Va. 576; s. c. 16 S. E. Rep. 749, 758; French v. 
 French, 8 Ohio 214; s. c. 31 Am. Dec. 441; Holland v. Barnes, 53 Ala. 83; s. 
 c. 25 Am. Rep. 595. 
 
 ? Samuel v. Marshall, 3 Leigh, 567; Arnold v. Hickman, 6 Munf. 15; Bush 
 
lOO EQUITY PRINCIPLES. 
 
 Mere excitement from the use of intoxicating liquor if not such 
 as to suspend the reason, will not be sufficient to avoid a con- 
 tract.^ But advantage must be taken of an instrument made by 
 one in a state of intoxicati9n, by the party himself or his legal 
 representative. ^ 
 
 § 60. Party asking cancellation or rescission of instru- 
 ment must be in situation to place the other in 
 statu quo — 
 Where a person has been overreached in a contract or other 
 transaction by fraud or other unconscionable means, and he de- 
 sires to rescind or cancel the same, and he brings suit in equity 
 for that purpose, he must show by his bill of complaint that he 
 has substantially preserved the statu quo on his part, and that if 
 the contract or other instrument is rescinded, that he is in a sit- 
 uation to restore all money, property or benefits which he has re- 
 ceived or enjoyed by virtue of the transaction complained of; 
 and if the rescission is made, as a rule the entire contract must 
 be canceled or rescinded.' In case of rescission and cancellation, 
 the general principle is that he who seeks equity must do equity; 
 that the party against whom relief is sought shall be remitted to 
 the position he occupied before the transaction complained of. 
 The court proceeds on the principle that, as the transaction ought 
 never to have taken place, the parties are to be placed as far as 
 possible in the situation in which they would have stood if there 
 had never been any such transaction.* 
 
 V. Breining, 113 Pa. St. 310; s. c. 57 Am. Rep. 469; Johns v. Rutchey, 39 
 Md. 258; Phelan v. Gardner, 43 Cal. 306; Picket v. Sutter, 5 Cal. 412; Wilson 
 V. Bigger, 7 Watts & S. (Pa.) iii; Birdsongv. Birdsong, 2 Head. (Tenn.) 
 289. 
 
 » Gavender v. Waddingham, 5 Mo. App. 457. See post, § 171. 
 
 " Wigglesworth v. Steers, i H. & M. 70; Broadwater v. Dame, 10 Mo. 277. 
 
 3 Higham v. Harris, 108 Ind. 246; s. c. 8 N. E. Rep. 255, 259; Dillman v. 
 NaddlehofEer, 119 111. 567; s. c. 7 N. E. Rep. 88; Doane v. Lockwood, 115 
 111. 490; s. c. 4 N. E. Rep. 500; Physio Med. College v. Wilkinson, 108 Ind. 
 314; s. c. 9 N. E. Rep. 167; Worthington v. Collins, Adm'r, 39 W. Va. 406; 
 s. c. 19 S. E. Rep. 527; Miller v. Cook, 10 h. R. A. 292; Rigdon v. Wallcot, 
 141 111. 649; s. c. 31 N. E. Rep. 158. See Pratt v. Bowman, 37 W. Va. 715, 
 17 S. E. Rep. 210: Worthington v. Collins, 39 W. Va. 406, 19 S. E. Rep. 
 527; Christian v. Vance, 41 W. Va. 754, 24 S. E. Rep. 596. 
 
 iNeblet V. McFarland, 92 N. S. 101; Rigdon v. Walcot, 141 111. 649; s. c. 
 31 N. E. Rep. 158, 162. In Doane v. Lockwood, 115 111. 490, 4 N. E. Rep. 
 500, it is said: "Undoubtedly, the law is, where a party has received any 
 
CANCELLATION OF WRITTEN INSTRUMENTS. \ lOI 
 
 Thus, a suit to cancel a sale of stocks and lands on the ground 
 of fraud on the part of the purchaser will not lie where the 
 money paid at the sale has not been returned or tendered, even 
 though the seller spent the money before he discovered the al- 
 leged fraud, and is unable to obtain the amonnt of money neces- 
 sary for a tender.^ So, where the rescission is made of a sale of 
 real estate on account of the vendor's fault, the general rule is 
 that the vendee is entitled to have the purchase-money paid to 
 him, with its interest, returned; also, to be paid for permanent 
 improvements made in good faith. But he will be charged with 
 the reasonable rents and profits after deducting the amount of 
 taxes paid, and is also to be charged for any waste by him com- 
 mitted.* And if one comes into a court of equity to cancel a 
 tax deed, he must tender or offer to pay to the purchaser the 
 amount of the lawful and vaUd taxes due thereon, together with 
 the interest thereon.' But where an insane person or his estate 
 is concerned in the matter of the rescission of a contract or other 
 instrument, there is no refunding of the consideration required, 
 unless the party affected was ignorant of the fact of the insanity 
 and the consideration received was actually used for the benefit 
 of the insane party.* The same rule applies as to the return of 
 the consideration where suit is brought for rescission or cancella- 
 tion of a contract by an infant that obtains in cases of adults.' 
 
 § 6i. Laches or fraud as a defense to the rescission or 
 cancellation of contracts — 
 Delay in the assertion of a right, unless satisfactorily ex- 
 plained, even where it does not constitute a positive statutory 
 bar, operates in equity as an evidence of assent, acquiescence or 
 waiver; and especially is such the rule in suits to set aside trans- 
 actions on account of fraud or infancy. A court of equity which 
 in never active in relief against stale demands, will always refuse 
 
 valuable consideration, upon the sale of property, he can not rescind the 
 contract for fraud without first returning, or offering to return, to the pur- 
 chaser the consideration received whatever it may be." 
 
 ' Rigdon V. Wallcot, supra. ' Worthington v. Collins, Adm'r, supra. 
 
 3 Miller v. Cook, (111.) lo L. R. A. 292 and notes; Herzog v. Gregg, 23 
 Kan. 726; Beck v. Merriam, 10 Neb. 199; Morris v. Roseberry, 00 W. Va. 
 000, 32 S. E. Rep. 1019. 
 
 < Physio Med. College v. Wilkinson, 108 Ind. 314; s. c. 9 N. E. Rep. 167; 
 Northwestern, etc., Co. v. Blankenship, 94 Ind. 535. 
 
 s Parsons on Contracts (6th ed.), 321, 322. Seejios^, I 171. 
 
I02 BQUITY PRINCIPLBS. 
 
 relief where the party has slept upon his right and acquiesced for 
 a great length of time. Nothing can call into activity a court of 
 equity but conscience, good faith and reasonable diligence. 
 Where these are wanting the court is passive and does nothing. 
 Laches and neglect are always discountenanced.^ Thus, a court 
 of equity will not set aside a deed made by a daughter to her 
 father immediately before her marriage conveying her remainder 
 in land, in which the father had a hfe estate, upon the ground of 
 undue influence after an interval of thirty-five years, and after 
 the death of the father, though the claim of the daughter is not 
 barred by the statute of limitations, where the case is not a clear 
 one, and there are no circumstances which sufficiently account 
 for the delay.* So, too, when an aged woman, by giving a deed, 
 disinherits her only son, an unexplained delay of five years after 
 her death, before an attempt was made to set aside the convey- 
 ance, for incapacity and undue influence, will defeat such equitable 
 right of the son.' The defense of laches is in equity only per- 
 mitted to defeat an acknowledged right, on the ground of it af- 
 fording evidence that the right has been abandoned.* But, while 
 it is true that a person's rights in a court of equity may be lost 
 by his laches, yet, when the party who, it is claimed, has failed 
 to assert his rights, within a reasonable time, was an infant or 
 one non compos mentis, and the suit is promptly brought after 
 there is some one appointed upon whom the law imposes the ob- 
 ligations to guard the interests of such infant or lunatic, the doc- 
 trine of laches does not obtain as a defense.® It is sufficient to 
 satisfy the rule under consideration, if the party is prompt in the 
 assertion of his rights after he has discovered the fraud or other 
 agency by which he was wronged.' 
 
 ' Trader v. Jarvis, 23 W. Va. 100, 108; Pusey v. Gardner, 21 W. Va. 469, 
 481-484; Smith V. Thompson, 7 Gratt. 112; Doggett et al. v. Helm et at., 17 
 Gratt. 96; Perry v. Pearson, 135 111. 218; s. c. 25 N. E. Rep. 636; Whittaker 
 et ux. V. Southwest Va. Imp. Co., 34 W. Va. 216; s. c. 12 S. E. Rep. 507; 
 Barnett v. Bamett, 83 Va. 504; s. c. 2 S. E. Rep. 733, 736; Guffin v. Buck- 
 head, 84 Va. 612; s. c. 5 S. E. Rep. 685. 
 
 ' Pusey V. Gardner, supra. 
 
 3 Hale V. Cole, 31 W. Va. 576; s. c. 8 S. E. Rep. 516. 
 
 * Nelson v. Carrington, 4 Munf. 332, 343, 6 Am. Dec. 519; Massey v. 
 Hershkell, 80 Va. 805. 
 
 s Knight V. "Watt, 26 W. Va. 175. 
 
 « Virginia Land Co. v. Haupt, 90 Va. 533; s. c. 19 S. E. Rep. 168; Barnett 
 V. Barnett, 83 Va. 504; s. c. 2 S. E. Rep. 733; Whittaker v. Southwest Va. Imp. 
 
CANCELLATION OF WRITTBN INSTRTJMBNTS. 103 
 
 Cancellation will not be decreed in cases wherein the parties 
 are in pari delicto} 
 
 Co., 34 W. Va. 217; s. c. 12 S. E. Rep. 507. loaches does not begin to run as 
 against a subscriber's right fo repudiate a subscription obtained from him by- 
 fraud until he has knowledge of the fraud, or of facts which would reasona- 
 bly arouse inquiry on his part. Virginia Land Co. v. Haupt, supra. 
 ' Rock V. Matthews, 35 W. Va. 531, 14 S. E. Rep. 137. 
 
I04 EQUITY PRINCIPLBS. 
 
 CHAPTER IX. 
 
 CONFUSION OP BOUNDARIES. 
 
 ? 62. The origin and nature of equity jurisdiction in matters of boundaries 
 of real estate. 
 62a. What must be shown to maintain a bill to settle disputed boundaries. 
 
 § 62. The origin and nature of equity jurisdiction in mat- 
 ters of boundaries of real estate — 
 
 The jurisdiction of a court of equity to settle disputed or con- 
 fused boundaries between adjacent landowners was asserted at 
 an early day in the history of this court.* ^As to what gave 
 rise to this branch of its jurisdiction, is, to some extent, matter 
 of uncertainty and conjecture,^ some attributing its origin to the 
 consent of the parties, whereby the procedure was conducted by 
 analogy to the writs de rationalibus divisis^ and de perambulatione 
 fadenda,^ used at law;^ while others ascribe its origin to the equity 
 which prevents a multiplicity of suits.* 
 
 A court of equity will not assume jurisdiction merely to set- 
 tle the question of boundaries to land.' Before the court, will in- 
 terpose its aid to afford relief, the plaintiff must show some pe- 
 culiar equity on his side, which has arisen from the conduct, sit- 
 
 ■ Bispham, Princ. Eq., ? 503; 3 Pomeroy, Eq. Jur., | 1384. 
 
 "Idem. 
 
 3 This was a common-law writ which lay to settle the boundaries between 
 the lands of persons in different towns, where one complained of encroach- 
 ment by the other. Black, Law Die. 331. 
 
 * The writ de perambulatione fadanda lay at the common law, where there 
 was a dispute as to the boundaries of two adjacent lordships or towns, di- 
 rected to the sheriff, commanding him to take with him twelve discreet and 
 lawful knights of his county and make perambulation and set the bounds 
 and limits in certainty. Idem, 350. 
 
 s Bispham Princ. Eq., § 503. e Idem. 
 
 '■> Hill V. Proctor, 10 W. Va. 59; Cresap v. Kimble, 26 W. Va. 603; Bright 
 V. Knight, 35 W. Va. 290, 13 S. E. Rep. 63; Carrington v. Otis, 4 Gratt. 235; 
 Bums V. Mearne, 44 W. Va. 744, 30 S. E. Rep. 112. 
 
CONFUSION OF BOUNDARIBS. 105 
 
 nation or relation of the parties;^ or that the settlement of the 
 boundaries is a mere incident to the main relief sought by the 
 bill.* 
 
 § 62a. 'What must be shown to maintain a bill to settle 
 disputed boundaries — 
 
 That a suit of this character may be sustained, it must appear 
 that the defendant is in possession of the land concerning which 
 the dispute has arisen, or at least of some portion thereof,' and it 
 must be shown that the defendant has a clear title to some por- 
 tion of the land of which he is in possession.* This fact may 
 either be proved by the plaintiff or admitted by the defendant 
 himself.' 
 
 In the next place it must be shown that without the assistance 
 of the court the boundaries cannot be found and established.* 
 
 If the confusion of the boundaries has been occasioned by fraud, 
 that alone is sufficient to confer equity jurisdiction;^ and if the 
 fraud is established, the court will, by commission, ascertain and 
 fix the boundaries, if practicable; and if not practicable, will do 
 justice between the parties, by assigning reasonable boundaries, 
 or setting out lands of equal value.* And equity will exercise 
 its jurisdiction under this head, where there is such a relation 
 between the parties as makes it the duty of one of them to pre- 
 serve the boundaries, and the confusion has arisen by his negli- 
 gence or misconduct:' and it will also interpose here when by do- 
 ing so it can prevent a multipUcity of suits. ^" 
 
 ' Hill V. Proctor, supra, and the other cases cited in the above foot-note; 
 Collins V. Sutton, 94 Va. 127, 26 S. E. Rep. 415. 
 "^ Carbery v. W. Va. & P. R. Co., 44 W. Va. 260, 28 S. E. Rep. 694. 
 3 Beach, Mod. Eq. Jur., ? 1002; 3 Pomeroy, Eq. Jur. (2d ed.), 2 1385. 
 
 *Idem. s Beach, Mod. Eq. Jur., J 1002. 
 
 ' Fetter, Eq. 264. ' Hill v. Proctor, supra. 
 
 Hdem. ^Idem. ^"Idem. 
 
I06 EQUITY PRINCIPLES. 
 
 CHAPTER X. 
 CONTRIBUTION. 
 
 J 63. The doctrine of contribution and the principle upon which it rests. 
 
 64. Contribution between co-sureties. 
 
 65. Contribution between partners. 
 
 66. Contribution among tenants in common. 
 
 67. Contribution among creditors. 
 
 68. Contribution among part owners of vessels and other owners of 
 
 property. 
 6g. Contribution among wrong-doers. 
 
 70. Contribution among joint obligors. 
 
 71. Contribution among devisees and legatees. 
 
 § 63. The doctrine of contribution and the principle upon 
 which it rests — 
 The principle of contribution applies when one of several 
 parties, who are liable for the payment of a common debt or 
 obligation, discharges the same for the benefit of all.^ It is not 
 founded on contract, but upon the general principles of justice 
 and equality;^ and upon the further principle that where the 
 interest is common or mutual the burden shall likewise be so.* 
 And though courts of law now assume jurisdiction to enforce con- 
 tribution in some cases, this in nowise afPects the jurisdiction 
 originally belonging exclusively to equity.* 
 
 ■ Bispham, Princp. Eq., ? 328; Pomeroy, Eq. Jur., ? 1418. 
 
 = Bispham, Princp. Eq., i 328. 
 
 3 Baltimore & Ohio R. Co. v. Walker, 45 Ohio St. 577, 16 N. E. Rep. 475. 
 
 < Wayland v. Tucker, 4 Gratt. 267. "The doctrine of contribution, as a 
 method of equitable relief and a branch of equitable jurisdiction rests upon 
 the maxim 'equality is equity.' It is applied to cases where several persons 
 are under a common liability to one, when equity will distribute the burden 
 among the obligors in proportion to their respective shares; or when one 
 has already paid the whole, the rest will be forced to contribute ratably to 
 reimburse him to the extent to which he has discharged the obligation in 
 excess of what could justly be claimed from him. The doctrine was first 
 established and enforced in equity, but a jurisdiction at law has become well 
 settled which is said to be sufficient for all ordinary cases of suretyship and 
 joint liability, and this jurisdiction has been assumed by courts of law upon 
 the theory of an implied contract." 2 Beach, Mod. Eq. Jur., g 822. 
 
CONTRIBUTION. I07 
 
 The usual instances wherein contribution may be enforced are 
 among co-sureties,^ partners,^ tenants in common, ' creditors,* 
 owners of vessels," wrong-doers,* joint obligors,' and devisees and 
 legatees.* 
 
 § 64. Contribution between co-sureties — 
 
 The right of contribution arises between sureties where one has 
 been compelled to pay all of the common liability, or more than 
 his proportion thereof, and it appears that due diligence has been 
 used without effect to obtain reimbursement from the principal 
 debtor, or that he was insolvent.' But the payment made by the 
 surety must have been one which he was bound to make, other- 
 wise contribution cannot be enforced.^" 
 
 As to this matter, our code provides that "if the principal 
 debtor be insolvent, any surety, or his personal representative, 
 against whom a judgment or decree has been rendered on the 
 contract for which he was surety, may obtain a judgment or de- 
 cree by motion, in the circuit court of the county, against any 
 co-surety or his personal representative, for his share, in law or 
 equity, of the amount for which the first-mentioned judgment or 
 decree may have been rendered; and if the same has been paid, 
 for such share of the amount so paid, with interest thereon from 
 the time of such payment."" 
 
 § 65. Contribution between partners — 
 
 Contribution between partners must usually be sought in a 
 court of equity, where an accounting may be had of all the part- 
 nership dealings and transactions of the firm.*^ Until the ac- 
 counts of the firm are settled, it cannot be known how the 
 
 ' 2 Beach, Mod. Eq. Jur., ? 826. f Idem, § 829. ' Idem. I 835. 
 
 •• Post, I 67. ' Post, i 68. « Post, § 69. 7 Post, § 70. 
 
 « Post, I Ti. 
 
 9 McCormack's Adm'r v. O'Bannon's Executors and Devisees, 3 Munf. 
 484; Hawker v. Moore, 40 W. Va. 49; s. c. 20 S. E. Rep. 848; Boulware, 
 Receiver, v. I^wis, 83 Va. 679; s. c. 3 S. E. Rep. 289; Hanley's Adm'r v. 
 Herritage's Adm'r, 85 Va. 177; s. c. 7 S. E. Rep. 204. 
 
 » Turner's Adm'r v. Thorn, 89 Va. 745; s. c. 17 S. E. Rep. 323. See post, 
 
 §390- 
 
 " Code, chap. loi, sec. 5. 
 
 " Bishop v. Bishop, 54 Conn. 234; Johnson v. Mantz, 69 Iowa, 710; Zell's 
 Appeal, III Pa. St. 532; McGunn v. Hanlin, 29 Mich, 476; Fletcher v. 
 Grover, 11 N. H. 368. 
 
Io8 EQUITY PRINCIPIvES. 
 
 accounts with reference to the individual partners stand; and 
 hence it is usual to proceed in equity and to compel contribution 
 in this tribunal, where all differences may be adjusted and set- 
 tled.^ And if one partner has furnished more than his share of 
 the funds used in the business, or paid more than his proportion 
 of partnership liabilities, contribution will be thus compelled by 
 the other partner or members of the firm.^ 
 
 Under the principles herein announced, a partner who takes 
 exclusive possession of the assets of the firm on its dissolution, 
 and undertakes to close up the business, is not entitled to contri- 
 bution from a partner for firm debts paid by him, until he has 
 made a settlement of the partnership accounts.* 
 
 § 66. Contribution among tenants in common — 
 
 Where a tenant in common or joint tenant pays any debt or 
 charge against the common property, which it was necessary to 
 pay in order to preserve the property from I03S or destruction, he 
 may enforce contribution from his co-tenants.* Thus a tenant in 
 common who pays off a lien against the joint property is entitled 
 to contribution from his co-tenants; and in order to enforce such 
 contribution, he has an equitable lien against their interests, of 
 the same character as that which he has removed.^ 
 
 § 67. Contribution among creditors — 
 
 Where creditors, in a joint endeavor to assert rights common 
 to all, incur liability, which is discharged by one of the parties, 
 contribution may be enforced by him against the others. Thus, 
 if several parties sue out an attachment against a defendant in a 
 suit brought in good faith for that purpose, and the attachment 
 is afterwards defeated, and damages afterwards obtained for the 
 illegality of the attachment proceedings, if one of the creditors 
 
 " Story, Part., § 222; Smith v. Zumbro, 41 W. Va. 623, 24 S. E. Rep. 653. 
 
 » Idem; Fetter on Equity, 253. See/oi<, \\ 383-385. 
 
 ' Smith V. Zmnbro, supra. 
 
 « Clark V. Lindsey, 47 Ohio St. 437; s. c. 9 L. R. A. 740; Benedict v. Chase, 
 58 Conn. 196; s. c. 8 L. R. A. 120; Douner v. Smith, 38 Vt. 464; Willard v. 
 Strong, 14 Vt. 352; Lloyd v. Llynch, 28 Pa. St. 419; Maul v. Rider, 51 Pa. 
 St. 377; Davis V. King, 87 Pa. St. 261; Harrison v. Harrison, 56 Mich. 174; 
 Allen V. Poole, 54 Miss. 323; Piatt v. St. Clair, 6 Ohio, 227; Busch v. Hus- 
 ton, 75 111. 343. See note to Clark v. Lindsey, 9 L. R. A. 740. 
 
 s Moon V. Jennings, 119 Ind. 336. 
 
CONTRIBUTION. I09 
 
 suing in the attachment case should pay such damages, he may 
 enforce contribution against the rest.' 
 
 § 68. Contribution among part owners of vessels, and 
 other owners of property — 
 
 "Whenever the ship is reasonably repaired by the consent of 
 all the owners, for the common benefit, and one part owner has 
 paid for all the expense incurred, he can call upon the others for 
 contribution."^ 
 
 So Ukewise for expenses incurred for the common benefit of 
 property held in joint ownership, or for money expended in re- 
 pairing party walls, or even in building a party wall, where the 
 undertaking is to be .done by all the parties in the erection of the 
 same.^ 
 
 § 69. Contribution among wrongdoers — 
 
 The general common-law rule is that no right of contribution 
 exists between wrongdoers.* But this rule was only applied to 
 those cases wherein the parties must have known that they were 
 wrongdoers.* 
 
 Thus, contribution was allowed between joint trespassers, 
 where their trespass, which consisted of levies made by their 
 joint procurement tmder their several attachments, was made in 
 good faith, believing that the claim to the property by the person 
 whose rights they invaded was actually fraudulent.* But this 
 common-law rule is no longer in force with us, having been 
 changed by an act of legislature now contained in the Code.'' 
 This provision of the law is as follows: "When judgments have 
 been rendered since the twenty-fourth day of March, one thou- 
 
 ' Farwell v. Becker, 129 111. 261, 6 t,. R. A. 400. 
 
 ' 4 Am. & Eng. Enc. L. 8, 9. 
 
 3 Idem, 7, 9, 10, note; Baltimore & O. R. Co. v. Walker, 45 Ohio St. 577; 
 s. c. 16 N. E. Rep. 475. 
 
 ■• 4 Am. & Eng. Enc. Law, 12; 3 Pom. Eq. Jur., § 1418, note; i Addison, 
 Torts, 98; Cooley, Torts, 149; Hunt v. Lane, 9 Ind. 249. 
 
 5 Vandiver v. PoUak, 97 Ala. 467; s. c. 19 L. R. A. 628; Adamson v. Jar- 
 vis, 4 Bing. 66; Jacobs v. Pollard, 10 Cush. 287; Archeson v. Miller, 2 Ohio 
 St. 203; Horbach v. Elder, 18 Pa. St. 33; Armstrong County v. Clairor 
 County, 66 Pa. St. 218; s. c. 5 Am. Rep. 368; Thureatt's Adm'r v. Jones, i 
 Rand. 328. 
 
 ' Vandiver v. Pollak, 97 Ala. 467; s. c. 19 L. R. A. 628. 
 
 ' Code, chap. 136, sec. 8, p. 861. 
 
no EQUITY PRINCIPLES. 
 
 sand eight hundred and seventy-three, or may hereafter be ren- 
 dered in actions ex delicto against several persons jointly, and 
 satisfaction of said judgments has been, or may be, made by any 
 one or more of the said parties, the others shall be liable to con- 
 tribution to the same extent as if the judgments were upon ac- 
 tions ex contractu. ' ' 
 
 § 70. Contribution among joint obligors — 
 
 That there may be contribution among joint obligors, they 
 must be equally bound to one principal for the same debt ; ^ and 
 another prerequisite to the right of contribution is the payment 
 of the debt by the person seeking to enforce the right." And 
 "where several parties enter into an obligation under bond to per- 
 form a certain contract for the payment of money, and it is per- 
 formed by a part of them only, they may demand contribution 
 from the rest for reimbursement, and recover pro rata from the 
 obligors who have failed to perform.'" But the debt paid by one 
 joint obligor must be one which the other joint obligors are 
 legally bound to pay. Thus, if the debt paid be barred by the 
 statute of limitations, contribution cannot be enforced against 
 the other obligors.* 
 
 § 71. Contribution among devisees and legatees — 
 
 The principle of contribution is applicable also, where property, 
 subject to a common charge, is bequeathed or devised, and 
 devisees or legatees must contribute to the payment of the charge 
 in proportion to the value of the property acquired by each; and 
 the rule applies where property so charged is acquired by descent.' 
 
 legacies are also liable to contribution /ro rata to the payment 
 of debts.' 
 
 Our statute provides, too, that ' 'if a will be made when a tes- 
 tator has a child living, and a child be bom afterwards, such 
 after-bom child or any descendant of his, if not provided for by 
 any settlement, and neither provided for nor expressly excluded 
 by the will, but only pretermitted, shall succeed to such portion 
 of the testator's estate as he would have been entitled to if the 
 
 • 2 Beach, Mod. Eq. Jur., I 834. " Idem, \ 825. 3 idem. 
 
 * Turner V. Thorn, 89 Va. 745; s. c. 17 S. E. Rep. 323. See Singer Mfg 
 Co. V. Bennett, 28 W. Va. 16; Pickens v. McCoy, 24 W. Va. 344. 
 
 5 2 Beach, Mod. Eq. Jur., \ 833. « Idem. 
 
CONTRIBUTION. Ill 
 
 testator had died intestate, toward raising which portion, the 
 devisees and legatees shall, out of what is devised and bequeathed 
 to them, contribute ratably, either in kind or in money, as a court 
 of equity in the particular case maj- deem most proper. But if 
 any such after-bom child or descendant die uiider the age of 
 twenty-one years, unmarried and without issue, his portion of the 
 estate, or so much thereof as may remain unexpended in his sup- 
 port and education, shall revert to the person to whom it was 
 given by the will. ' ' * 
 
 • Code, chap. 77, sec. 17. This is taken from the statute of Virginia, 
 passed in 1794, as amended by the act of 1839-40, chap. 56. In the absence 
 of this statute, a pretermitted child cannot call upon the legatees for con- 
 tribution. Savage v. Meas, 2 Rob. Rep. 570. See Yerby v. Yerby, 3 Call, 
 289; Armistead v. Dangerfield, 3 Munf. 20; Wilson v. Miller, 2 P. & H. 353; 
 Bowyer v. Glendening, 4 Munf. 219. 
 
112 EQUITY PR1NCIPI<BS. 
 
 CHAPTER XI. 
 CORPORATIONS. 
 
 ? 72. When afiairs of a corporation may be admiBistered by a court of 
 equity. 
 
 73. As to the dissolution of corporations. 
 
 74. Dissolution of a corporation by statute in a court of equity. 
 
 75. As to the collection of unpaid stock. 
 
 76. When stockholders may sue in relation to corporate property and 
 
 rights. 
 
 77. Suit by stockholders to cancel subscriptions. 
 
 78. As to an act ultra vires of a corporation. 
 
 § 72. When affairs of a corporation may be administered 
 by a court of equity — 
 
 Our statute provides that when a corporation expires, or is dis- 
 solved, or before its expiration, or dissolution, upon sufficient 
 cause being shown therefor, such court as is mentioned in the 
 preceding section (a court of equity) may, on application of a 
 creditor or stockholder, appoint one or more persons, to be re- 
 ceivers, to take charge of , and administer, its assets; and whether 
 such receiver be appointed or not, may make such orders and 
 decrees, and award such injunctions in the cause, as equity and 
 justice may require. This section shall apply to corporations, 
 heretofore or hereafter, chartered by another state, which may 
 have done business and acquired property, or contracted debts in 
 this state, and any of whose creditors, or stockholders, or their 
 personal representatives, reside herein; and the circuit court of 
 any county wherein such creditor, stockholder, or personal rep- 
 resentative, may reside, or where such assets or property, or 
 part thereof, may be, or where the person owing such debts, or 
 having such property in possession, may reside, shall afford such 
 relief as is prescribed in this and the next section.^ 
 
 The reading of this section shows that equity will only take 
 jurisdiction to administer the assets of a corporation, either after 
 its expiration or dissolution, or upon sufficient cause shown there- 
 
 » Code, chap. 53, sec. 58, p. 511. 
 
CORPORATIONS. 1 1 3 
 
 for, before its expiration or dissolution. Our supreme court de- 
 clares that "the clear purpose of this statute is merely to authorize 
 the appointment of a receiver and the granting of injunctions in 
 suits properly brought, and has no reference to the manner in 
 which or by whom such suits shall be instituted. ' ' ' 
 
 § 73. As to the dissolution of corporations— 
 
 Inasmuch as our statute provides for the jurisdiction of a court 
 of equity, to wind up corporate afEairs and business, after the dis- 
 solution of the corporation, it is proper to consider the ways in 
 which dissolution may be effected. By dissolution is meant the 
 ending of corporate existence.^ And according to a recent and 
 most excellent treatise ^ a corporation may be dissolved in one of 
 the following ways: "ist. By expiration of the time limited in its 
 charter; 2d. By resolution of a majority of its stockholders; 3d. 
 By a judgment of ouster of a court of competent jurisdiction in a 
 direct proceeding for that purpose; 4th. By a decree of a court of 
 equity in a case within its jurisdiction." When a corporation ex- 
 pires by limitation of law, while it is said to no longer exist, but 
 is really without existence either de facto or de jure,^ still, by 
 virtue of our statute, as construed by our supreme court of ap- 
 peals,' the law is otherwise with us; so that where a private busi- 
 ness corporation, duly chartered and organized under the laws of 
 this state, does not wind up its business when its charter expires, 
 but continues thereafter to do business in the corporate name, it 
 is Uable to suit either at law or in equity, as the case may be.* 
 
 Where cause for the forfeiture of the corporate franchise ex- 
 ists, such forfeiture cannot be enforced collaterally, or in any 
 other mode than by a direct proceeding for that purpose, against 
 the corporation, so that it may have an opportunity to answer, 
 and the state alone can institute such proceeding.'' 
 
 » Rathbone v. Parkersbvirg Gas Co., 31 W. Va. 798, 8 S. E. Rep. 570, 575, 
 
 576. 
 
 ' Chilton, W. Va. Corp. 81. 
 
 3 Chilton on West Virginia Corporations, 86. * Clark, Corp. 231. 
 
 s Miller v. Newburg Orrel Coal Co., 31 W. Va. 836, 8 S. E. Rep. 600. 
 
 ' Miller v. Newburg Orrel Coal Co., supra. 
 
 ' Greenbrier Lumber Co. v. Ward, 30 W. Va. 43, 3 S. E. Rep. 227; Moore 
 V. Schoppert, 22 W. Va. 282. For the method of procedure by writ of quo 
 warranto, see Chilton on West Virginia Corporations, 89-93. F°r discon- 
 tinuing and dissolving by resolution of the stockholders, see Idem, 87-89. 
 8 
 
114 EQUITY PRINCIPLBS. 
 
 § 74. Dissolution pf a corporation by statute in a court of 
 equity — 
 
 As we have already stated,^ a dissolution of a corporation 
 may be effected by the decree of a court of equity, and 
 touching this method of ending its life,'' it is provided by 
 statute that, "if not less than one-third in interest of the 
 stockholders of a corporation desire to wind up its affairs, 
 they may apply by bill in chancery to the circuit court of 
 the county in which the office or principal place of business of 
 such corporation is situated, or if there be no office or place of 
 business in this state, to the circuit court of the county in which 
 the other stockholders, or any one or more of them reside or are 
 found, or in which the property of such corporation or any part 
 of it may be, setting- forth in the bill, the grounds of the ap- 
 plication; and the court may thereupon proceed according to 
 the principles and usages of equity to hear the matter, and if 
 sufficient cause therefor be shown, to decree a dissolution of the 
 corporation, and make such orders and decrees, and award such 
 injunctions in the cause as justice and equity may require."' 
 
 In a suit brought under the law to dissolve the corporation, the 
 corporation itself is a necessary party thereto;^ and in a suit to 
 wind up the affairs of a defunct corporation, the stockholders are 
 also necessary parties.' 
 
 Under this law a corporation cannot be dissolved as matter of 
 right, but only t!pon sufficient cause shown therefor.* 
 
 » Ante, I 73. ' Code, chap. 53, sec. 57. 
 
 3 Idem. "A court of equity has no jurisdiction, unless it is conferred, as 
 in some jurisdictions, by statute, to dissolve a corporation, and distribute 
 its assets, at the suit of a stockholder or any other private individual. Some 
 exceptions to this rule have been recognized. Nor, generally, has a court 
 of equity any jurisdiction to enforce a forfeiture, or enjoin the exercise of 
 unauthorized privileges and powers, at the suit of the state; but it may en- 
 tertain an information to enjoin acts which constitute a public nuisance, and 
 which would require immediate interference, and it mayassimie jurisdiction, 
 in case of a charitable trust where the beneficiaries are numerous and in- 
 definite, and the breach of trust cannot be effectively redressed except by 
 suit in behalf' of the public." Clark on Corporations, 245. See also Wheeler 
 V. Pullman Iron & S. Co., 143 111. 197, 17 Iv. R. A. 818; O'Connor v. Knox- 
 ville Hotel Ass'n, 11 Am. R. R. & Corp. R., note 2, p. 84. 
 
 * Hurst V. Coe, 30 W. Va. 158, 3 S. E. Rep. 564. 
 
 s Styles V. Laurel Fork Oil & Coal Co., 45 W. Va. 374, 32 S. E. Rep. 227. 
 
 ' Hurst V. Coe, supra; Weigand v. Alliance Supply Co., 44 W. Va. 133, 28 
 S. E. Rep. 803. 
 
CORPORATIONS. 1 15 
 
 The stockholders representing a majority of the stock, may- 
 discontinue the corporate business at a meeting properly called 
 for that purpose, or go into a court of equity, when a proper 
 ground exists therefor, and have a decree of dissolution made by 
 such court.* 
 
 § 75. As to collection of unpaid stock — 
 
 If the corporation seeks to enforce payment of unpaid stock 
 subscriptions, it may do so by an action at law or upon motion 
 after notice.^ 
 
 And if any stockholder be indebted to the corporation, his divi- 
 dend, or so much thereof as may be necessary, may be applied to 
 the payment of the debt, if the same be then due and payable.' 
 
 And when a corporation has assigned its assets to a trustee, in- 
 cluding unpaid stock subscriptions, he may sue at law therefor in 
 his own name.* 
 
 But while the liability of stockholders on account of this un- 
 paid stock may be enforced at law by the corporation or by its 
 assignee, at common law a creditor cannot maintain an action at 
 law against stockholders for unpaid subscriptions, for there is no 
 privity of contract between them, and, furthermore, unpaid sub- 
 scriptions cannot be thus appropriated by one creditor to the ex- 
 clusion of the others.* 
 
 ' Idem. 
 
 » Clark on Corporations, 318; Greenbrier Industrial Exposition Co. v. 
 Squires, 40 W. Va. 307; 21 S. E. Rep. 1015; Code, chap. 53, sees. 28, 29. 
 
 3 Donnally v. Heamdon, 41 W. Va. 519, 23 S. E. Rep. 646. 
 
 * Vanderwerker v. Glenn, 85 Va. 9, 6 S. E. Rep. 806; Clark on Corpora- 
 tions, 589. 
 
 5 Clark on Corporations, 591. "By the great weight of authority, a cred- 
 itor may, by a general creditor's bill, proceed against a single delinquent 
 stockholder of an insolvent corporation, and compel him to pay the whole 
 amount due from him to the corporation on account of his subscription, or 
 on account of corporate property unlawfully received by him if necessary 
 in order to satisfy his debt, without making other stockholders parties, 
 and without any account being taken of other indebtedness of the corpora- 
 tion, the stockholder proceeded against being left to pursue his remedy 
 against the other stockholders for contribution. The corporation must be 
 made a party to a suit by its creditors against delinquent stockholders, for 
 otherwise it would not be bound by the judgment therein. But if a stock- 
 holder sees fit to go to trial and judgment without objecting to the nonjoin' 
 der of the corporation, he cannot afterwards complain." Clark on Corpora- 
 tions, 592, 593. 
 
Il6 EQUITY PRINCIPIvES. 
 
 It is well settled that a creditor cannot maintain a suit in 
 equity against stockholders to compel payment of a balance due 
 on their subscriptions, or repayment of funds paid out to them, 
 until he has exhausted his legal remedy against the corporation.^ 
 As a general rule, therefore, to maintain such a suit, he must show 
 a judgment against the corporation, and a return of execution 
 thereon unsatisfied. Such a rfeturn is sufficient proof that he has 
 exhausted his legal remedy against the corporation.^ 
 
 § 76. When stockholders may sue in relation to corpo- 
 rate property and rights — 
 
 By the common law, the property and rights of a corporation 
 belong to the united association, acting in the corporate name, 
 and not to the stockholders.' And therefore a stockholder can- 
 not maintain an action at law for an injury to the corporation.* 
 But as the stockholders are the real owners of the property, in 
 equity a' technical trust thereof arises in their favor, which a 
 court of equity, upon a proper showing, will protect and enforce." 
 In Rathbone v. Parkersburg Gas Co. ,* our supreme court defines 
 the rule by which a stockholder may sue to redress a corporate 
 injury as follows: "In order to entitle a stockholder to institute 
 and maintain a suit in equity to redress a corporate injury com- 
 mitted infra vires, against a solvent corporation in the full exer- 
 cise of its franchises, and carrying on its corporate business, it 
 must appear that not only the directors are either disabled by 
 their misconduct to sue, or that they have wrongfully refused to 
 do so upon a proper demand; but where the matter will admit of 
 the necessary delay, and it is practicable to call upon the stock- 
 holders to act, this must also be done. Until it is shown that 
 every reasonable effort to obtain redress through the regularly 
 constituted agents and controlling power of the corporation has 
 proved unavaiUng, a stockholder cannot sue in his own name 
 alone, nor on behalf of himself and other stockholders. ' ' ' 
 
 ' Clark on Corporations, 597. = Idem. 
 
 3 Moore v. Schoppert, 22 W. Va. 282. ■• Clark on Corporations, 389. 
 
 s Moore v. Schoppert, supra. " 31 W. Va. 798, 8 S. E. Rep. 570. 
 
 ' "In order that a stockholder may institute such a suit, he must allege 
 and prove that a request or demand has been made upon the board of di- 
 rectors or other body managing the corporation that they institute proceed- 
 ings on the part of the corporation against the wrongdoers, and their refusal 
 to do so after reasonable request or demand; or he must allege such a state of 
 
CORPORATIONS. 117 
 
 Under the limitations of this rule a suit may be maintained 
 when it is shown that the corporation has ceased to exist either 
 in law or in fact, or that it has abandoned its corporate business 
 and neglected to maintain its corporate existence by the election 
 of directors and the appointment of officers to manage its affairs 
 by a stockholder, without showing more, on behalf of himself 
 and the other stockholders against the corporation or others hav- 
 ing assets belonging to it, for the protection of his rights.^ 
 
 And where the president of a railroad is the general manager, 
 and constitutes about all there is of the company, a demand upon 
 and a refusal by him is sufficient to entitle the stockholder to 
 bring suit in his own name to have construction bonds of the com- 
 pany, unlawfully issued by the president, declared ultra vires and 
 void.^ 
 
 facts as will show that the defendants whom he charges with the wrongdoing 
 constitute a majority of the board of directors or managing body at the time 
 of the suit, or that they or a majority of them are under the control of the 
 defendant wrongdoers, so that the court may infer that they would refuse to 
 bring such suit; or he must allege such facts in his pleading as will show 
 that it is reasonably certain that a suit by the corporation would be impossi- 
 ble, and that a demand to sue would be useless. Then, in either case, the 
 stockholder may, without averring or proving that he made any request or 
 demand, maintain such suit. 2 Pom., Eq. Jur., \ 1095; Cook, Stock., Stockh. 
 & Corp. Law {3d ed.), ?| 740, 741; Hawes v. Oakland, 104 U. S. 450." 
 Mount V. Radford Trust Co., 93 Va. 427, 25 S. E. Rep. 245. See Park v. Oil 
 Co., 26 W. Va. 486. 
 
 » Crumlish v. Railroad Co., 28 W. Va. 236. "A suit is brought by a. 
 stockholder of a foreign corporation on behalf of himself and the other 
 stockholders against a domestic corporation having property in this state 
 belonging to said foreign corporation or owing debts to it; and the 
 bill shows that the foreign corporation had ceased to use its franchises, 
 and been dissolved by virtue of the laws of the state of its creation, and 
 had no property or assets except those in the hands of the said domes- 
 tic corporation and within the jurisdiction of the court. Held — I. The 
 courts of this state have jurisdiction of such suit, notwithstanding the 
 fact that said foreign corporation cannot be brought within the jurisdiction 
 of such courts. II. The said foreign corporation is not an indispensable 
 party to such suit. 
 
 "Where such suit is brought within less than four years from the time 
 the cause of action arose, and it does not appear that any of the parties 
 have died, or that the rights of third persons have intervened, or that there 
 has been no loss of evidence, the doctrine of laches has no application." 
 Crumlish v. Railroad Co., supra. 
 
 = City of Chicago v. Cameron, 120 111. 447, 11 N. E. Rep. 899; Clark on 
 Corp. 395, 398. 
 
Il8 EQUITY PRINCIPLES. 
 
 A corporation must defend a suit brouglit against it in its cor- 
 porate name; and a purchassr of stock will not be permitted to 
 do so, unless the corporation has refused to defend.^ 
 
 § 77. Suit by stockholders to cancel stock subscriptions — 
 
 Where a subscription of stock has been obtained by fraud or 
 misrepresentation or by mistake, such subscription, may be re- 
 scinded and the money paid thereon decreed to be refunded.'' 
 
 But if the party is guilty of laches or puts off his application 
 to the court for relief, until the corporation becomes insolvent 
 and the rights of creditors intervene, the courts usually deny the 
 relief sought.' 
 
 The fact that a party who subscribes for stock, because of 
 fraud and misrepresentation, has a remedy for damages to recover 
 back what he has paid upon his subscription, does not deprive 
 equity of the jurisdiction, which it thus affords to cancel the con- 
 tract, and avoid also in this way in many instances a multiplicity 
 of suits. This principle is established by abundant authority.* 
 
 ' Park V. Petroleum Co., 25 W. Va. 108. 
 
 = Carey V. Coffee Stemming Mach. Co., 00 Va. 000, 20 S. E. Rep. 778; New- 
 ton Nat. Bank v. Newbegin, 20 C. C. A. 339; Benton v. Ward, 47 Fed. Rep. 
 253- 
 
 3 Opinion of court in Newton Nat. Bank v. Newbegin, supra. See also 
 Martin v. South Salem Land Co., 94 Va. 28, 26 S. E. Rep. 591, 598. 
 
 < Bosley v. National Machine Co., 25 N. E. Rep. 991; Vail v. Reynolds, 118 
 N. Y. 297, 23 N. E. Rep. 301; Gousd v. Bank, 86 N. Y. 75; Bosher v. Rich- 
 mond & H. L. Co. 89 Va. 455, 16 S. E. Rep. 360; Ramsey v. Thompsori; 
 Mfg. Co., 116 Mo. 313, 22 S. W. Rep. 719; 12 Am. R. R. & Corp. Rep. note,, 
 p. 131; Sherman v. Am. Stove Co., 85 Mich. 169, 5 Am. R. R. & Corp. 
 K-ep. 353, note 4; Wenstrow Consol. Dynamo & Motor Co. v. Pamell, 75 Md. 
 113, 23 Atl. Rep. 134. "It is claimed on the part of the defendants that th& 
 sole remedy of the plaintiffs is a common-law action to recover the money 
 paid for the stock, or damages for the fraud, and that an equitable action for 
 the rescission of the contract is not needful, and cannot be maintained. It 
 is quite plain that the plaintiff could have sued both the defendants for the 
 fraud, and recovered her damages caused thereby. But if she had pursued 
 that remedy, she would have remained a stockholder, notwithstanding her 
 recovery for the fraud, and such an action would have been barred in six 
 years. She could also, after having offered to return the stock, and the divi- 
 dends which she had received thereon, have recovered against the company,, 
 and probably against House for money had and received, and that action 
 would have been barred in six years. She could not in such an action, how- 
 ever, have procured a cancellation of her stock, or the removal of her name 
 as a stockholder from the books of the company. But she was not obliged 
 to resort to either of the remedies just named. She could bring an equi- 
 
CORPORATIONS. II9 
 
 And it is proper to restrain by injunction any disposition of 
 the corporate property and the money paid for the stock pending 
 a suit to cancel the subscription and to obtain a decree for refund- 
 ing the money paid thereon.^ 
 
 And "persons who have been induced by the same fraudulent 
 representations, contained in a prospectus, to subscribe to the 
 stock of a corporation, have a common interest, and may join in 
 a bill, for the benefit of themselves and others similarly deceived, 
 to set aside their subscriptions." ^ 
 
 But one who is induced to subscribe for stock by a fraudulent 
 representation cannot, after discovering the fraud, retain the 
 stock in hopes that it will rise in value, or continue to act as a 
 stockholder, and then disaffirm his subscription.' Nor will rep- 
 resentations as to the future intention, purpose or expectation of 
 the corporation, or the prospective value of its assets, though 
 false, or not made in good faith, constitute such fraud as will 
 enable the subscriber to stock in a corporation to avoid his 
 contract.* 
 
 § 78. As to an act ultra vires of a corporation — 
 
 When a minority of the stockholders have been injured by the 
 acts of a corporation, which are ultra vires, they may resort to a 
 court of equity for relief.* As where the directors have assigned, 
 or are attempting to 'assign, the entire property of the corporation 
 to a trustee for the payment of its debts.* 
 
 Mr. Clark, in his recent treatise on Corporations, says: "The 
 authorities agree that, under certain conditions, a bill in equity 
 may be maintained by a stockholder or member against the cor- 
 poration to enjoin it from entering into an ultra vires contract, or 
 
 table action to procure a rescission of the contract, a cancellation of lier sub- 
 scription, and tlie removal of her name from the stock books — just the action 
 she commenced." Bosley v. National Mach. Co., supra 
 
 ' Sherman v. American Stove Co., supra. 
 
 ' Bosher v. Richmond & H. L. Co., supra. 
 
 3 Weisiger v. Richmond Ice Mach. Co.. 90 Va. 795, 20 S. E. Rep. 361. 
 
 ••Anderson v. Middle and E. Tenn. Cent. R. Co., 5 Am. R. R. & Corp. 
 Rep. 345, and note 3, pp. 352, 353, citing Armstrong v. Karshner, 47 Ohio 
 St. 276, 24 N. E. Rep. 897; Columbia Electric Co. v. Dixon, 46 Minn. 463, 
 49 N. W. Rep. 244. 
 
 5 Boyce v. Montauk Gas Co., 37 W. Va. 73, 16 S. E. Rep. 501; Smith v. 
 Cornelius, 41 W. Va. 59, 23 S. E. Rep. 599. 
 
 « Kyle V. Wagner, 45 W. Va. 349, 32 S. E. Rep. 213. 
 
I20 EQUITY PRINCIPLBS. 
 
 from performing a threatened ultra vires act; and such a bill may 
 also be maintained to prevent it from performing an ultra vires 
 contract, unless the contract is enforceable against it, vmder the 
 doctrines which we shall presently explain, notwithstanding its 
 ultra vires character. The fact that a stockholder is not injured 
 by an ultra vires contract of the corporation, to which all the 
 other stockholders have consented, does not prevent him from 
 maintaining a suit to enjoin its performance.^ 
 
 ' ' Where a corporation has received the consideration for an 
 ultra vires contract, and then comes into a court of equity asking 
 to have the contract declared void, and to be restored to the rights 
 which it parted with, the relief will not be granted unless the 
 corporation restore the consideration which it had received.- In 
 American Union Tel. Co. v. Union Pac. Ry. Co.,^ a railroad 
 company, authorized also to construct and operate a telegraph 
 line, leased the telegraph line to another without authority, and 
 received the consideration. It afterwards brought suit in equity 
 to set the lease aside, and recover possession of the property. 
 Judge McCrary held that the relief would not be fgranted unless 
 it returned the consideration which it had received. 
 
 "If an ultra vires contract has been fully executed, neither 
 party can maintain an action at law or a suit in equity to recover 
 what he or it has parted with. Thus, one who has sold, re- 
 ceived payment for, and conveyed land to a corporation cannot 
 sue to rescind the conveyance on the ground that the corpora- 
 tion had no power to purchase. Nor, under the circumstances, 
 could the corporation rescind the purchase and recover what it has 
 paid." 3 
 
 When the acts of a corporation are assailed as ultra vires by a 
 suit in equity, the corporation is an indispensable party thereto.* 
 But, where the object of the suit is to protect the interest of the 
 stockholders from the unauthorized acts of the directors, and 
 the president, directors and all the stockholders are before the 
 court, it is not necessary in such case to make the corporation a 
 party. ° 
 
 ' Clark on Corporations, 164. " i McCrary, 188, i Fed. Rep. 745. 
 
 3 Clark on Corporations, 178. 
 
 ■t Smith V. Cornelius, 41 W. Va. 59, 23 S. E. Rep. 599. 
 
 s Kyle V. Wagner, supra. See as to what is an ultra vires act, post, \\ 
 
CURTESY. 121 
 
 CHAPTER XII. 
 CURTESY. 
 
 2 79. When husband entitled to curtesy in wife's lands. 
 80. How husband may be barred of his curtesy. 
 
 § 79. W^hen husband entitled to curtesy in wife's lands — 
 "If a married woman die seized of an estate of inheritance in 
 lands, her husband shall be tenant by the curtesy in the same. 
 An estate by the curtesy in the lands of which a married woman 
 may hereafter die seized, shall exist and be held by her husband 
 therein, whether they had issue bom alive during the coverture 
 or not."^ At the common law four things were essential to 
 curtesy: marriage, seizin of the wife, issue bom alive and the 
 death of the wife? Our law has changed the rule at common law 
 so far as to dispense with the requisite of issue. There must, of 
 course, be marriage and death of the wife, and the further requi- 
 site of the actual seizin of the wife of an estate of inheritance.* 
 And this seizin must be in fact and not in law.* 
 
 Prior to the adoption of the code of 1868, under the common 
 law, the husband, by marriage and the birth of a child alive, be- 
 came tenant by the curtesy iniatiate of the freehold property of 
 inheritance of his wife, and the life estate thus acquired became 
 liable for the husband's debts.® 
 
 The various Married "Woman's Acts, passed by the different 
 states of the Union, are not ordinarily construed to divest the hus- 
 band of his curtesy, simply because they vest the wife with the legal 
 title to her lands, coupled with the right to manage and control 
 the same free from the direction or interference of her husband.* 
 
 These enabling acts as to the separate estates of married 
 
 ' Code, chap. 65, sec. 15. 
 
 » Pulton V. Johnson, 24 W. Va. 107; Winkler v. Winkler's Ex'r, 18 W. 
 Va. 455. 
 
 3 Fulton V. Johnson, 24 W. Va. 95, 107. < Fulton v. Johnson, supra. 
 
 5 Wyatt V. Smith, 25 W. Va. 813. 
 
 «Stew. Husb. & W. l\ i6l, 243; In re Winne, 2 Lans. 21; Hatfield v. 
 Sneden, 54 N. Y. 280; Noble v. McFarland, 51 111. 226; Freeman v. Hart- 
 man, 45 111. 57; Cole V. Van Riper, 44 111. 58; Bozarth v. Largent, 128 111. 
 
122 EQUITY PRINCIPI,BS. 
 
 women, simply destroy the common-law right of the husband to 
 take and hold the separate estate of the wife and the rents, issues 
 and profits thereof for his own use and the payment of his debts, 
 and to destroy his estate of freehold in the lands of his wife which 
 he had during coverture.^ He is, therefore, entitled to curtesy 
 in all these lands upon the death of his wife, as if the laws had 
 not been enacted, so far as his right of curtesy after the death of 
 his wife is concerned, in all cases where the statute itself does 
 not in express terms deprive him thereof.^ 
 
 The husband may claim curtesy in lands which he has himself 
 conveyed to his wife;' in the lands to which his wife had only an 
 equitable title;* and in lands purchased at a judicial sale, after 
 the confirmation of such sale, though the lands so purchased be 
 vacant and unoccupied.* 
 
 But it is held in Virginia that where a husband has settled any 
 personal property by way of gift upon his wife, and she then 
 purchases real estate, and pays for the same wholly out of the 
 personal property so given her by her husband, he, upon her 
 death, takes no curtesy in such real estate, as it would operate to 
 defeat the gift to the wife.' Nor can curtesy be claimed in land 
 in which the wife had only a remainder expectant on a prior es- 
 tate which does not terminate during the coverture;' nor in the 
 wife's lands after an absolute divorce,' unless prescribed by stat- 
 ute;* nor in lands subject to a power of sale by the wife, which 
 has been executed during the lifetime of the wife.^" 
 
 95, 21 N. E. Rep. 2i8; Zimmermann v. Schoenfeldt, 3 Hun. 692; Neely v. 
 Lancaster, 47 Ark. 175; Wells, Mar. Worn. ? 38; Alexander v. Alexander, 85 
 Va. 353, I L. R. A. 125. 
 
 ■ Bozarth v. Largent, supra. " See the authorities cited under note 6, ante. 
 
 3 Deming v. Miles, 35 Neb. 739, 53 N. W. Rep. 665, 37 Am. St. Rep. 464. 
 
 * Ogden V. Ogden, 60 Ark. 70, 28 S. W. Rep. 796; 46 Am. St. Rep. 175; 
 opinion of court in 83 Va. 392, 11 S. E. Rep. 879. 
 
 5 Seim V. O'Grady, 42 W. Va. 77, 24 S. E. Rep. 994. 
 
 'Dugger's Children v. Dugger, 84 Va. 130, 4 S. E. Rep. 171; Iryine v. 
 Greever, 32 Gratt. 419. 
 
 7 Todd V. Oviatt, 68 Conn. 174, 20 Atl.Rep. 440, 7 L.R. A. 693; Webster v. 
 Ellsworth, 147 Mass. 602, 
 
 ^ Nelson on Divorce and Separation, ? 1030, citing numerous cases, among 
 ■which is that of Porter v. Porter, 27 Gratt. 599. 
 
 ' Burgess v. Muldoon, 18 R. I. 607, 24 X,. R. A. 798. 
 
 "> Harvey v. Brisbin, 143 N. Y. 151, 38 N. E. Rep. 108. See also Hutch- 
 ings v. Commercial Bank, 91 Va. 68, 20 S. E. Rep. 950; Chapman v. Price, 
 83 Va. 392, II S. E. Rep. 879. 
 
CURTESY. 123 
 
 And at .common law tlie husband was entitled to curtesy in all 
 tlie real estate, of which the wife died seized, whether such es- 
 tate was separate or not.^ But since the passage of the "married 
 woman's act" the husband's curtesy initiate in lands purchased 
 by his wife cannot be subjected to the payment of his debts." 
 
 B5' virtue of the statute there is no change in the extent of the 
 right of the husband to curtesy — he has curtesy whether the es- 
 tate be separate or not.' 
 
 § 80. How husband may be barred of his curtesy — 
 
 " If any estate, real or personal, be delivered by the wife to the 
 husband in lieu of his curtesy, and he accept the same, he shall 
 be barred of his curtesy in the residue thereof. And if a husband 
 of his own free will shall leave his wife, except for cause such as 
 would entitle him to a divorce, he shall be barred of his curtesy, 
 in his wife's estate, unless she afterwards become reconciled to 
 and hve with him as his wife.* 
 
 The wife cannot make any provision by will for the husband so 
 as to deprive him of his curtesy, although he may not have re- 
 nounced the wiU in that regard.* 
 
 This statute, unlike the one in relation to dower, makes no 
 provision under which the wife can bar the curtesy of her hus- 
 hand. It is only by an estate ' 'delivered by the wife to the hus- 
 band in lieu of his curtesy," and accepted by him, that will bar 
 his curtesy. Under this statute curtesy cannot be barred by a pro- 
 vision in the will of the wife, even when it is expressed to be for 
 that purpose, but such bar can be made effectual only by agree- 
 ment between the husband and wife inter vivos; that is, by the 
 wife delivering, to the husband an estate which he agrees to ac- 
 cept in lieu of his curtesy. The husband takes his curtesy in his 
 wife's lands by operation of law and his marital rights, and not 
 at the option of his wife. The law makes his right absolute and 
 -wholly independent of the power of his wife.* But in Virginia 
 it is held that "a conveyance of land by a father to his daughter's 
 
 ■ Winkler v. Winkler's Ex'r, 18 W. Va. 455. 
 ' Welsh V. Solenberger, 85 Va. 441; s. c. 8 S. E. Rep. 91. 
 3 Wells' Sep. Prop. Mar. Women, \ 38, pp. 106, 107. 
 ♦ Code, chap. 65, sec. 16. 
 
 5 Cunningham v. Cunningham, 30 W. Va. 599; s. c. 5 S. E. Rep. 139; 
 Beime's Ex'rs v. Von Ahlefeldt, 33 W. Va. 663; s. c. 11 S. E. Rep. 46. 
 ' Cunningham v. Cunningham, supra. 
 
124 BQTJITY PRINCIPI,BS. 
 
 husband 'in trust, nevertheless, for the sole, separate and exclu- 
 sive use and benefit of said daughter, and free and discharged 
 from the debts, contracts, liabilities and niaritd.1 control' of the 
 husband, creates in her a sole and separate estate, which she can 
 dispose of bywill, free from the husband's right of curtesy.^ 
 
 ' Kiracofe v. Kiracofe, 93 Va. 591, 25 S. E. Rep. 601. See also Chapmaa 
 V. Price, 83 Va. 392, 11 S. E. Rep. 879. Hutching v. Bank, 91 Va. 68, 20 S. 
 E. Rep. 950. 
 
DOWBR. 125 
 
 CHAPTER XIII. 
 DOWER. 
 
 i Si. Of -what a widow may be endowed. 
 
 82. The husband's estate of inheritance need not be indefeasible to entitle 
 
 the widow to dower. 
 
 83. As to widow's right of dower in partnership lands. 
 
 84. As to widow's right to dower in lands subject to vendors' and other 
 
 liens. 
 
 85. As to right of dower in growing crops. 
 
 86. As to dower in mineral lands. 
 
 87. As to dower in wild and uncultivated lands. 
 
 88. As to dower in equitable estates. 
 
 89. As to dower in estates in remainder and reversion. 
 
 go. As to dower where husband holds the naked legal title. 
 
 91. Who may have dower assigned. 
 
 92. ' A gross sum in lieu of dower in kind. 
 
 93. Commutation of dower; the effect thereof upon the fee of the land. 
 
 94. Should be no sale of land until dower therein is assigned. 
 
 95. Bar to dower by wife's joinder with husband in deed. 
 
 96. Bar to dower by a provision in lieu thereof. 
 
 97. Bar of dower by lapse of time. 
 
 98. Bar of dower where wife deserts husband and lives apart from him. 
 
 §81. Of what a widow may be endovred — 
 
 ' 'A widow shall be endowed of one-third of all the real estate 
 whereof her husband or any other to his use was, at any time 
 during the coverture, seized of an estate of inheritance, unless 
 her right to such dower shall have been lawfully barred or relin- 
 quished. 
 
 "When a husband, or any other to his use, shall have been en- 
 titled to a right of entry or action in any land, and his widow 
 would be entitled to dower out of the same if the husband or 
 such other had recovered possession thereof, she shall be entitled 
 to such dower, although there shall have been no such recovery 
 of possession. 
 
 ' 'Where land is bona fide sold in the lifetime of the husband 
 to satisfy a lien or incumbrance thereon, created by deed in which 
 the wife has united, or for the purchase-money thereof, whether 
 she has united therein or not, or created before marriage, or 
 
126 BQTJITY PRINCIPLES. 
 
 otlierwise paramount to the claim of the wife, she shall have no 
 right to be endowed in the said land. But if a surplus of the 
 proceeds of the sale remain after satisfjring the said lien or in- 
 cumbrance or purchase-money, she shall be entitled to dower in 
 said surplus, and a court of equity, having jurisdiction of the 
 case, may make such order as may seem to it proper to secure 
 her right." ^ Under this statute, the widow is entitled to be en- 
 dowed of one full, fair third of the land according to quantity 
 and quality, as it was at the time of the husband's death.' And 
 this, too, though the lands be held in trust for the use and bene- 
 fit of the husband.' 
 
 The rule is to assign the dower to the widow in kind by proper 
 metes and botmds, unless there has been an alienation of the land 
 by the husband alone during his life by conveyance in which the 
 wife has not joined; and the execution of a deed of trust under 
 which no sale has taken place in the husband's lifetime does not 
 alter the rule.* But this rule has its exceptions. Thus, when 
 the thing is entire, as a house, the assignment may be of so 
 many rooms, and not a third part of it, wherein it is usually es- 
 sential to the beneficial enjoyment of the property that passages, 
 stairways, etc., be assigned to be used by the widow conjointly 
 with others; * and when, from the nature of the husband's inter- 
 est in the property, there can be no assignment in severalty, an 
 assignment by metes and bounds will of necessity be dispensed 
 with — as where lands are held in common — in which case the 
 dower interest is assigned to be held in common with the other 
 tenants.* 
 
 One of the essential requisites of dower is that the husband 
 must have been seized of an estate of inheritance during his life- 
 time in the land in which dower is claimed.' And this seisin 
 must not be merely instantaneous and transitory, but appreciable 
 
 ' Code, chap. 65, sees, i, 2, 3. 
 
 • Casto V. Kintzel, 27 W. Va. 751. 3 Code, chap, 71, sec. 17. 
 
 * Tracey v. Schumate, 22 W. Va. 474, 498; McCauley v. Dismal Swamp. 
 Co., 2 Rob. R. 507; Parish v. Parish, 88 Va. 529; s. c. 14 S. E. Rep. 325. 
 
 s Parish V. Parish, supra; i Rop., Husb. & Wife, 396; Simmons v. Lyles, 
 27 Gratt. 922. 
 
 ' Parish V. Parish, supra; 4 Kent, Comm. 64. 
 
 ' Kanawha Valley Bank v. Wilson and others, 29 W. Va. 645; s. c. 2 S. E, 
 Rep. 768; Blow V. Maynard, 2 Leigh, 30. 
 
DOWBR. 127 
 
 and beneficial.^ To illustrate: a conveyance of land to a hus- 
 band, who, as part of the same transaction, executes a deed of 
 trust to secure the unpaid purchase-money, does not give the 
 husband such a seisin of the land as will entitle his widow to 
 dower, as against the grantee in the deed of trust. And the 
 fact that the latter is the assignee of the vendor of the land does 
 not affect the principle.^ 
 
 » Gilliam v. Moore, 4 I,eigh, 30; George, Ex'r, v. Cooper, Trustee, 15 W. 
 Va. 666; Spencer & Miller v. I^ee et al., 19 W. Va. 179; Hurst v. Dulaney, 87 
 Va. 444; s. c. 12 S. E;. Rep. 800; Rousli v. Miller, 39 W. Va. 638; s. c. 20 S. 
 E. Rep. 663. 
 
 " Hurst V. Dulaney, supra. The court in its opinion in this case says: 
 "The principal question in the case is whether the appellant, who is the 
 widow of James Hurst, deceased, is entitled to dower in the tract of land 
 known as 'Bluff Point' in the bill and proceedings mentioned. The facts 
 are these: On the ist day of January, 1861, the land was sold and conveyed 
 by James L. Haynie to Hurst, who on the same day executed a deed of trust 
 thereon to secure the unpaid purchase-money to William H. Haynie, the as- 
 signee of the vendor. In 1872, Hurst was adjudged a bankrupt, and in the 
 course of the bankruptcy proceedings the land was sold at public auction to 
 the said William H. Haynie. The substituted trustee in the deed of trust united 
 in this sale, and also united with the assignees in bankruptcy in conve3dng 
 the land to the purchaser. This was in 1873, and in the lifetime of Hurst. 
 The land brought $450 in excess of the debt secured by the deed of trust, 
 which was paid by the purchaser to the assignees in bankruptcy. The sale 
 was duly reported to the bankrupt court and confirmed. In 1875, Haynie, 
 the purchaser, and others, who claimed an interest in the fund, conveyed 
 the land to Dulaney, the defendant below, who remained in undisturbed 
 possession thereof until the commencement of this suit, about twelve years 
 afterwards; Hurst in the meantime having died. From this statement, it is 
 very clear, as the circuit court held, that the claim to dower in the land can- 
 not be sustained. The deed of January i, 1861, from Haynie to Hurst, and 
 the deed of trust executed on the same day, are considered in equity, not as 
 separate and distinct transactions, but as parts of the same contract. So 
 that the seisin of the husband was for a transitory instant only, and of such 
 a seisin, according to an ancient principle of the common law, the wife is 
 not entitled to dower. This principle has so often been recognized by this 
 court that it would be a waste of time to do more than merely cite the cases, 
 and they are: Gilliam v. Moore, 4 Leigh, 30; Wheatley's Heirs v. Calhoun, 
 12 Leigh, 264; Wilson v. Davisson, 2 Rob. (Va.) 384; Robinson v. Shacklett, 
 29 Gratt. 99; Summers V. Dame, 31 Gratt. 791; Coffman v. Coffman, 79 Va. 
 504. These cases also establish the proposition that, if both instruments are 
 executed on the same day, the presumption is that they were executed at the 
 same time and are parts of the same transaction, unless the contrary be 
 shown — unless it be proved that they were separate and independent acts. 
 Nor is the present case affected by the fact that the deed of trust was for the 
 
128 EQUITY PRINCIPLES. 
 
 In the case of Rousli v. Miller, cited in the foot-notes, the 
 court decides that as long as the legal title to land is retained, a 
 lien for the purchase-money exists; and such lien is paramount 
 to the right of dower of the widow of the purchaser. 
 
 Where a conveyance of the legal title to such purchaser is 
 made, in pusuance of the agreement of the parties, in order that 
 the purchaser may, by deed of trust made at the same time, pass 
 on the title to the trustee in the trust deed to secure the payment 
 of such purchase to the cestui que trust who has paid.it for him, 
 the two deeds are to be treated as parts of one and the same 
 transaction, made to retain on the face thereof a lien on the land 
 for such unpaid purchase-money, and the right of dower of the 
 widow of the purchaser is subordinate to the lien of the deed of 
 trust. 1 
 
 § 82. The husband's estate of inheritance need not be in- 
 defeasible, to entitle the widow to dower — 
 
 During the husband's lifetime, the wife really has but a possi- 
 ble future right to have laid off to her one-third in value of his 
 lands which he holds in fee; and this tight not only extends to 
 the lands which, during the marriage, he held in absolute fee, 
 but also to all lands held by him during the marriage in fee sim- 
 ]ple, though his fee in them may be a defeasible fee simple, which, 
 so far as the interest of the husband in them is concerned, may 
 be defeated, and his estate terminated by his death, and his lands 
 by a shifting devise oh his death go to others. Even in such 
 case the estate, as it were, extends so as to allow to the widow a 
 right to have laid off to her one-third in value of such lands as 
 her dower to be held by her for life.'' To illustrate: If land is 
 devised to a party with the proviso, if he should die without 
 heirs, the land shall be divided among other parties named, the 
 
 ■benefit of an assignee. The deed was given to secure the unpaid purchase- 
 money for the land, and that is sufficient. The principle above stated has 
 often been held to apply in favor of a third person, who advances the pur- 
 chase-money, and at the time of the conveyance takes a mortgage on the 
 land for his indemnity, and it equally applies to a case like the present, 
 Cowardin v. Anderson, 78 Va. 88." 
 
 ' Roush V. Miller, supra. 
 
 ' Tomlinson v. Nickell, 24 W. Va. 148, 159, 160; s. c. 27 yf. Va. 697, and 
 authorities cited on pages 705-707; Taliaferro v. Burnett, 4 Call, 321; Jones 
 V. Hughes, 27 Gratt. 560; Medley v. Medley, 27 Gratt. 568. 
 
DOWER. 129 
 
 widow of such devisee shall be entitled to dower in such land, 
 although her husband, such devisee, did die without heirs. ^ 
 
 § 83. As to widow's right of dower in partnership lands— 
 
 In Virginia, land purchased with partnership funds for part- 
 nership purposes, it is said, is treated as personalty so far as not 
 to be subject to dower or curtesy;^ but with us it is different, and 
 the widow is entitled to dower in partnership lands after the part- 
 nership debts have all been paid.^ 
 
 §84. As to widow's right to dower in lands subject to 
 vendor's and other liens — 
 
 A widow is not entitled to dower in real estate mortgaged by 
 the husband before marriage. In such case she is only entitled 
 to dower in the equity of redemption.* The same rule applies to 
 lands purchased by the husband either before or after marriage 
 upon which the vendor has retained a hen for purchase-money. 
 In such case the widow can have no dower until the purchase- 
 money is satisfied; and she is only dowable subject to such lien." 
 So, where a lien has been created on the land by the joint act of 
 the husband and wife, as by deed of trust in which she has 
 united, and a sale is made after the death of the husband to 
 satisfy such lien, the widow can only claim dower in the sur- 
 plus proceeds of the sale after the lien has been first discharged, 
 with the costs attendant upon its enforcement.* But, where 
 land has been sold in the lifetime of the husband to satisfy a lien 
 created by their joint act, as just stated, if there is a surplus of 
 the proceeds of sale after satisfying the Uen, the wife shall be en- 
 titled to dower in such surplus, and a court of equity having 
 jurisdiction of the case may make such order as may seem to it 
 proper to secure her right. ^ 
 
 Where there is a sale in the lifetime of the husband to satisfy 
 
 » Tomlinson v. Nickell, supra. 
 
 ' Parish V. Parish, 88 Va. 529, and authorities there cited; s. c. 14 S. E. 
 Rep. 325; Deering & Co. v. Kerfoot, 89 Va. 491, 16 S. E, Rep. 671. 
 
 3 Martin v. Smith, 25 W. Va. 584, 585. 
 
 * Hethe v. Cocke, i Rand. 344. 
 
 5 Martin v. Smith, 25 W. Va. 579, 585. 
 
 « Barbour v. Tompkins et al., 31 W. Va. 410; s. c. 7 S. E. Rep. i; Rein- 
 hardt, Ex'r, v. Reinhardt et al., 21 W. Va. 76. 
 
 7 Code, chap. 65, sec. 3. 
 
 9 
 
130 BQUITY PRINCIPI,ES. 
 
 such lien, the party purchasing from the husband, whether di- 
 rectly or indirectly through the intervention of a court of eqqity 
 or at a judicial sale, is bound to take notice of the contingent 
 dower interest of the wife; and if there is no provision made to 
 secure the wife's contingent right of dower in such surplus, and 
 the wife should survive the husband, and such contingent dower 
 interest becomes consummate, the same may be made a charge 
 upon the lands of the purchaser or those claiming under him.^ 
 
 § 85. As to right of dower in growing crops — 
 
 As the title to dower is consummated by the husband's death,, 
 when the wife is endowed she is in from the death of her hus- 
 band, and like any other tenant of the freehold she takes upon 
 recovery whatever is then annexed to the freehold, whether it be 
 so by folly, mistake or otherwise.^ 
 
 Under this principle she is entitled to dower in all growing 
 crops sowed or planted, during the lifetime of her husband, which 
 are not gathered until after his death.' 
 
 § 86. As to dower in mineral lands — 
 
 That a party is entitled to dower in mines already opened is no 
 longer an open question.* As far back as the case of Hobey v. 
 Hobey,* dower was allowed in a coal mine, but the case does not 
 
 " Holden v. Boggess, 20 W. Va. 62. But the supreme court of appeals of 
 Virginia, on a sixnilar statute, reaches an opposite conclusion to that of our 
 own court, and holds that the statute which gives the widow dower in the 
 surplus arising on a judicial sale under a deed of trust executed by the hus- 
 band to secure the unpaid purchase-money, requires that the widow must 
 look alone to the surplus, and that she cannot make the land in the hands of 
 a bona fide purchaser liable for her claim, as he is not bound to see to the 
 application of the purchase-money. Hurst v. Dulaney, 87 Va. 444; s. c. 12 
 S. E. Rep. 800. 
 
 ' Engle V. Engle, Ex'r, 3 W. Va. 246. 3 Idem. 
 
 * 5 Am. & Eng Enc. Law, 891 and note 13; Sayers v. Hoskinson, 110 Pa. 
 St. 473; Moore v. Rollins, 45 Me. 493; Freer v. Stotenbin, 36 Barb. 641 ;. 
 Irwin V. Covide, 24 Pa. St. 162; Neel v. Neel, 19 Pa. St. 323; Billings v.. 
 Taylor, 10 Pick. 460; s. c. 20 Am. Dec. 533; Crouch v. Puryean, i Rand. 
 258; Gaines v. Green Pond Iron Min. Co., 33 N. J. Eq. 603; Reed v. Reed, 
 16 N. J. Eq. 248; Senfers v. Henke, 73 111. 405; s. c. 24 Am. Rep. 263; Hendin 
 V. McBeth, 61 Ind. 473; s. c. 28 Am. Rep. 680; Rockwell v. Morgan, 13 N. 
 J. Eq. 384; Coales v. Cheever, i Cow. 460; Williamson v. Jones, 43 W. Va> 
 826, 27 S. E. Rep. 411. 
 
 5 1 Vem. 218, decided in 1683. 
 
DOWBR. 131 
 
 show whether or not it had been opened during the lifetime of 
 the husband. A subsequent EngHsh case denied the right of 
 dower in mines, unless opened during the life of the husband.^ 
 And this has been stated as the law in subsequent cases, both 
 English and American, in which the question was not involved 
 and has been the generally accepted doctrine of text writers.^ 
 But notwithstanding an unbroken Hne of authorities to the con- 
 trary, the supreme court of Michigan in a well-considered case 
 holds that the right of dower extends to a share of the proceeds 
 of mines although not opened until after the husband's death, 
 where they are opened on lands only for mining purposes and 
 available only for the minerals, the statutes of that state giving 
 the widow the "use during her natural life of one-third of all the 
 lands whereof her husband was seized during marriage.'" 
 
 ' Stonghton v. I^eigli, i Taunt. 402. 
 
 ' See'note to Seager v. McCabe, reported in 16 L. R. A. 247. 
 
 3 Seager v. McCabe, 92 Mich. 186; s. c. 16 L. R. A. 247. The court in 
 closing its well-considered opinion in this case, says: "The strict rules of 
 the common law of England respecting waste and the rights of tenants for 
 life do not obtain here. With us the change in the mode of use is not waste. 
 It is not use, but abuse, that is waste. Waste must be consumption, nor is 
 consumption always waste. The owner of a life estate has some rights in 
 common with the owner of the fee. There is no substantial reason why, so 
 far as the use of premises is concerned, there should not be a community of 
 right between the owner of the life estate and the owner of reversion. Our 
 statute respecting dower defines it as the use for life of one-third of all the 
 lands of which the husband was seized during the marriage relation. 
 " Dower " is defined by the English authorities as the provision which the 
 law makes for a widow out of the lands or tenements of her husband for her 
 support and the nurture of her children. Co. lyitt. 30a/ 2 Bl. Com. 130. 
 The rules applicable to a country where landed estates are large and diversi- 
 ^ fied, where the laws of inheritance are exclusive, where the theory of dower 
 is subsistence merely, and where there is a strong disposition to free estates 
 from even that charge, do not obtain in a commonwealth like ours, where 
 estates are small and the policy of our laws is to distribute them with each 
 generation, where dower is one of the positive institutions of the state, 
 founded in policy, and the provision of the widow is a part of the law of dis- 
 tribution, and the aim of the statute is not subsistence alone, but provision 
 commensurate with the estate. In the present case the grant is by opera- 
 tion of the statute, giving the use of all the lands of which the husband was 
 seized. The grant must be held to include the use of these lands, irrespect- 
 ive of whether mines were opened upon them before or after the husband's 
 death. The question here is not the impairment of one mode of enjojTnent 
 or source of profit to reach another. There is but one mode of enjoyment 
 of the land in question. But one source of revenue or profit. The land is 
 
132 , BQUITY PRINCIPI<ES. 
 
 But notwithstanding this well-considered decision and the very- 
 sound reasoning of the court upholding its conclusions, the law 
 in our state is certainly settled the other way by the case of 
 Williamson v. Jones, cited in the foot-notes. In that case the 
 court holds that a tenant for life may work open salt or oil wells 
 or mines even to exhaustion, without accounting to the remain- 
 derman, but cannot open new ones. And as it is generally held 
 that natural gas and petroleum oil are minerals,^ and that it is 
 waste in a life tenant to take the same from the land by sinking 
 wells for that purpose, so such tenant, though a tenant, in dower, 
 it is clear could not take any sort of minerals from the land, when 
 she would have to open new mines or sink new wells for that 
 purpose. 
 
 § 87. As to dower in w^ild and uncultivated lands — 
 
 The authorities with us agree that the same rules as to waste in 
 the use of timber by the life tenant do not obtain in this country 
 as in England; but that they must be varied and accommodated 
 to the circumstances of our new and unsettled territory. And 
 Chancellor Kent in his Commentaries,^ says that the American 
 doctrine on the subject of waste is somewhat varied from the 
 English law, and is more enlarged and better accommodated to the 
 condition of a new and growing country. So dower may be as- 
 signed in wild or timbered lands, though only useful for the pur- 
 poses of cutting timber therefrom and marketing the same.' 
 
 § 88. As to do-wer in equitable estates — 
 
 Dower in equitable estates in Virginia is tracable to the statute 
 of that state passed as early as the year 1785, a transcript of which 
 will be found in a note to the case of Claiborne v. Henderson.* 
 
 susceptible of but one use. The widow is therefore entitled to one-third of 
 the amount in the hands of the petitioner, and the decree of the court be- 
 low is affirmed." 
 
 ^ Murray v. Allard (Tenn.) 39 L. R. A. 248; Kelly v. Ohio Oil Co., 57 Ohio 
 St. 317, 39 L. R. A. 765. 
 
 ' Vol. 4, p. 76. 
 
 3 Brown v. Richards, 17 N. J. Eq. 32; Schenbly v. Schenbly, 26 111. 116; 
 Campbell, Appellant, 2 Doug. (Mich.) 141; Chapman v. Schroeder, 10 Ga. 
 321; Macaulay v. Dismal Swamp Laud Co., 2 Rob. (Va.) 507; Allen v. 
 McCoy, 8 Ohio, 418. 
 
 * 3 Hen. & Munf. 322. 
 
DOWER. 133 
 
 A similar statute, which may be said to embody the same law, is 
 found in our code, and is now in force in this state. ^ 
 
 Wherever the seizin of the husband rests upon the legal title 
 to the land coupled with the possession or the right of possession, 
 then there can be no question as to the widow's right to dower 
 upon her husband's death, so far as the question of the nature of 
 the estate is concerned. But where the husband's seizin is not 
 thus established, and depends upon the equitable rights of the 
 husband, it may be safely stated that where equity would enforce 
 specific performance, the widow would be entitled to dower. 
 That is, where the husband at the time of his death was in a 
 situation to call upon his vendor for the legal title the right to 
 dower attaches to the estate.^ 
 
 This is true, .though the contract of purchase be by verbal 
 agreement, provided there has been such part performance on the 
 part of the purchaser as to authorize specific performance in 
 equity.' It can be stated as a general rule that dower may be as- 
 signed in all equitable estates.* 
 
 § 89. As to dower in estates in remainder and reversion — 
 The inheritance must be an entire one, and one of which the 
 husband may have corporeal seizin, or a right to such seizin, 
 during coverture. 
 
 If, therefore, the husband have only a reversion or remainder 
 after a freehold estate in another, though it be in fee, it will not 
 give his wife a right of dower therein, unless by the death of the 
 intermediate freeholder, or a surrender of his estate to the hus- 
 band, the inheritance becomes entire in the husband during cov- 
 erture. But if the intermediate estate, subject to which the 
 husband has a reversion or remainder in fee, be a term for years, 
 the wife will be entitled to dower in the fee.* 
 
 ' Code, chap. 65, sec. 2. 
 
 ' Rowton V. Rowton, i H. & M. 92. 3 Idem. 
 
 * Yoimg V. Young, 45 N. J. Eq. 27; s. c. 16 Atl. Rep. 921; Askew v. Askew, 
 103 N. C. 285; s. c. 9 S. E. Rep. 646; Atkin v. Merrill, 39 111. 62; Robison v. 
 Miller, i B. Mon. 88; Claiborne v. Henderson, 3 H. & M. 322; 1 Wash., Real 
 Prop. 202-204, 223-225. 
 
 s I Wash., Real Prop. (4th ed.) 195, 196; Blow v. Maynard, 2 Leigh, 30; 
 Eellettv. Shepard (111.), 34 N. E. Rep. 254; Carter v. McDaniel (Ky.), 23 
 S. W. Rep. 507; Watson v. Watson, 150 Mass. 84; s. c. 22 N. E. Rep. 438; 
 Arnold v. Arnold, 8 B. Mon. 202; Fish v. Eastman, 5 N. H. 240; Moore v. 
 
134 BQTTITY PRINCIPLES. 
 
 § go. As to do^ver w^here husband holds the naked legal 
 title- 
 Where a husband holds the mere legal title, the real beneficiary- 
 interest in the land belongfing to another, as where he holds the 
 legal title in trust for the use of another, there can be no dower 
 in such lands. ^ 
 
 § gi. "Who may have do^ver assigned — 
 
 The right of dower at common law is a mere intangible, inchoate, 
 contingent expectancy, and, until it is assig^ned, it is no estate in 
 the land; but it is a right resting in action only, and it cannot be 
 alienated. It may be released, so as to bar the right of asserting 
 it against the owner in fee, but it cannot be invested in another 
 separately from the fee. Only the person entitled to dower under 
 the law can have it assigned at common law.^ 
 
 But in equity the rule is otherwise,' and the widow's assignee 
 could proceed in his own name for the assignment of dower;* and 
 the assignee stands in the same attitude in a court of equity, 
 when he brings the suit himself for the assignment of dower, as 
 the widow from whom he acquired the dower right, had she her- 
 self brought the suit.^ 
 
 And inasmuch as the dower right of a widow before the assign- 
 ment of it to her is a chose in action, there is no reason why the 
 assignee thereof should not be allowed to institute proceedings at 
 law also, to have the dower set off, as with us all choses in action 
 are assignable and may be sued on at law in the name of the 
 assignee.^ 
 
 But by virtue of our statute, until her dower is assigned, the 
 
 Esty, Idem, 469; Durando v. Durando, 23 N. Y. 331; Cocke v. Phillips, 12 
 Leigh, 248. 
 
 ' Hardman v. Orr et vex.., 5 W. Va. 71. 
 
 ^ Blain v. Harrison, 11 111. 386; Hoots v. Graham, 23 HI. 81; Best v. Jenks, 
 123 111. 447; s. c. 15 N. E. Rep. 173; Smith v. Shaw, 150 Mass. 297; s. c. 22 
 N. E. Rep. 924; Chapman v. Armistead, 4 Munf. 382; Jackson v. Aspell, 20 
 Johns. Rep. 411, N. Y. Com. Law Rep. (La. ed.). Vol. 6, 1063; Heisen v. 
 Heisen, 145 111. 658, 34 N. E. Rep. 597; Sutliff v. Forgey, i Cow. 89, 7 N. Y. 
 Com. Law Rep. (Law. ed.) 446; Cox v. Jagger, 2 Cow. 638; Parton v. Alli- 
 son, 109 N. C. 674, 14 S. E. Rep. 107; Tompkins V. Fonda, 4 Paige, 4*8; 
 Hopkins on Real Property, 95. 
 
 3 7 Enc. PI. & Pr. 156, 157. 4 Idem 
 
 5 Morgan v. Blatchley, 33 W. Va. 155, 10 S. E. Rep. 282. 
 
 ^ 7 Enc. PI. & Pr. 157. 
 
DOWBR. 135 
 
 -widow shall be entitled to demand of the heirs or devisees one- 
 third part of the issues and profits of the other real estate which 
 was devised or descended to them, of which she is dowable, and 
 in the meantime may hold, occupy and enjoy the mansion-house 
 and curtilage, without charge; and if deprived thereof, may, on 
 complaint of unlawful detainer, recover the possession, with dam- 
 ages for the time she was so deprived.^ But under this statute 
 she could not hold more than the mansion-house and the curti- 
 lage, and take one-third of the issues and profits of the real estate 
 from the heir or devisee, and should she get possession of the en- 
 tire lands of the decedent, she would have to account for the use 
 of the two- thirds independent of her dower rights.^ 
 
 "While the dower is treated as commencing immediately on the 
 death of the husband for the benefit and enjoyment of the widow, 
 still it does not seem, from the authorities cited in the foot-notes, 
 that she can transfer her interests in this respect so as to enable 
 a stranger to have the dower assigned to him in her room and 
 stead at common law, but only by virtue of our statute. 
 
 § 92. A gross sum in lieu of dow^er in kind — 
 
 Where land in which dower is claimed has been aliened by 
 the husband or sold under a judgment or decree of the court in 
 his lifetime, it is proper for the then owner of the land in which 
 dower is claimed to pay to the widow, during her life, lawful in- 
 terest from the time the demand is made upon him by the widow, 
 or her agent, for her dower in the lands on one-third of the value 
 thereof at the time of such alienation or sale, or he may pay her 
 a gross sum in lieu thereof, to be computed upon the principle 
 provided in section 17 of chapter 65 of the Code.' 
 
 Independent of the statute, there can be no decree for a gross 
 sum in lieu of dower, except where the parties in interest all 
 agree thereto.* 
 
 Under the statute, the option to pay a gross sum in lieu of 
 dower is with the purchaser, and the value of the land is to be 
 computed as of the time of the alienation by the husband.^ And 
 
 ' Code, chap. 65, sec. 8. 
 
 ' Grayson and Wife v. Moncure, i I/cigh, 449. 
 ' Code, chap. 65, sec. 12. 
 
 < Herbert v. Wren, 7 Cranch (U. S.) 374, 3 L. ed. 374; Hopkins on Real 
 Property, 96. 
 
 5 Verlander v. Harvey, 36 W. Va. 374; s. c. 15 S. E. Rep. 54. 
 
136 EQUITY PRINCIPI<BS. 
 
 instead of the gross sum thus provided, the alienee may pay the 
 annual interest on one-third of the value of the land, determined 
 as of the time of its alienation.^ 
 
 At common law, when the husband was once seized during 
 coverture in such manner that the wife's inchoate or contingent 
 right of dower attached, it was not in the power of the husband 
 to defeat it by any act in the nature of an alienation or charge. 
 The wife, upon the death of the husband, was entitled to claim 
 dower from the alienee, and the dower was to be assigned to her 
 in specie in the same manner as she would have recovered against 
 the heir of the husband had the latter died seized, except as to 
 damages.^ But this absolute right of dower in specie in land 
 alienated or sold during the lifetime of the husband has been 
 taken away by statute, and in lieu thereof, the party claiming 
 the land under such alienation or sale may, if he so elects, com- 
 pel the widow to take a gross sum of money in lieu of dower in 
 kind.' 
 
 § 93. Commutation of dovrer ; the effect thereof upon the 
 fee of the land — 
 
 Where, by the consent of the parties in interest, a widow 
 waives her right to have her dower set off to her in kind, and 
 signifies her willingness to accept money or other property in lieu 
 thereof, and, in conformity thereto, real estate is assigned to her 
 based on the commuted value of her dower in kind, the real 
 estate becomes her' s in fee. To illustrate: A widow's dower in 
 her husband's land is estimated at a certain sum, and a house 
 and lot is deeded to her, to which all parties in interest agree, 
 and she accepts the conveyance and takes possession of the house 
 and lot. The fee thereof becomes vested in the widow, and upon 
 her death the property will descend to her heirs at law.* But 
 
 •• Verlander v. Harvey, supra. ' Idem. 
 
 3 Code, chap. 65, sec. 12; Verlander v. Harvey, supra. Attention is here 
 directed to the case of Jarrell v. French, 43 W. Va. 456, 27 S. E. Rep. 263, 
 in which our court of appeals holds that "it is error to decree a 'specific 
 sum in lieu of dower without the assent of all the parties interested." The 
 decision is not very clear as to whether the court intends that the assent of 
 the purchasers and the widow must be had in order to enter such a decree, 
 or whether it must be with the assent of the purchasers. To reconcile the 
 decision with the statute and the construction heretofore placed upon it by 
 our court, the decision must be taken to mean the assent of the latter. 
 ,' ■• Fisher v. Clements, Ex'r, 82 Va. 813; s. c. i S. E. Rep. 182. 
 
DOWER. 137 
 
 her dower in kind cannot be commuted 'against her will, unless 
 it cannot be assigned to her in kind.^ 
 
 § 94. Should be no sale of land until dower therein is as- 
 signed — 
 
 It frequently happens that suit is brought to sell the land to pay 
 the debts of a decedent in which his widow is entitled to have 
 her dower assigned in kind by metes and bounds. In such case it 
 is error to decree the sale of such land until the dower has first 
 been assigned to the widow unless she has properly made an elec- 
 tion to take a gross sum in lieu of dower. ^ But it is not error to 
 render a decree to sell the lands of her deceased husband without 
 ascertaining in the suit in what lands, conveyed in his lifetime, 
 the widow is entitled to dower, and assigning her dower therein, 
 as she may properly bring a suit, or suits, herself for that pur- 
 pose, against the proper parties.^ 
 
 § 95. Bar to do\ver by w^ife's joinder with husband in 
 deed — 
 
 Where the wife unites with her husband in conveying his lands 
 to another in his Ufetime, in a deed properly signed and acknowl- 
 edged by her, she cannot claim dower in such lands after her hus- 
 band' s death. ^ Or where land is bona fide sold in the lifetime of 
 a husband to satisfy a lien or incumbrance thereon created by 
 deed, in which the wife has united, she shall have no right to 
 dower in such land.' 
 
 § 96. Bar to dow^er by a provision in lieu thereof — 
 
 Our statute provides that "if any estate, real or personal, in- 
 tended to be in lieu of her dower, shall be conveyed or devised 
 for the jointure of the wife, such conveyance or devise shall bar 
 her dower of the real estate or the residue thereof. "' A provis- 
 ion in a will or deed by way of jointure in lieu of dower under 
 
 » Wilson V. Branch, 77 Va. 65. 
 
 ^ Underwood's Executor v. Underwood's Heirs, S2 W. Va. 303; Laidley v. 
 Kline, Adm'x, 8 W. Va. 218; Somerville v. Somerville, 26 W. Va. 484; Kil- 
 breth v. Root's Adm'r, 33 W. Va. 600; s. c. 11 S. E. Rep. 21; Tracey v. Shu- 
 mate, 22 W. Va. 474. 
 
 3 Hunter's Ex'rs v. Hunter et al., 10 W. Va. 321. 
 
 < Henderson & Co. v. Alderson, 7 W. Va. 217. 
 
 s Holden v. Bogess, 20 W. Va. 62. • Code, chap. 65, sec. 4. 
 
138 EQUITY PRINCIPLES. 
 
 this Statute, will deprive the wife of her dower; but to be a bar 
 to the widow's right of dower, it must appear from a fair con- 
 struction of the instrument that it was intended to be a provision 
 in lieu of her dower. ^ 
 
 The usual mode of making provision for the wife is by the will 
 of the husband, and most of the cases that have arisen involving 
 the question of jointure, have been concerning wills wherein it 
 was sought to be shown that the devise to the wife was intended 
 to be in lieu of her dower; but inasmuch as the statute contem- 
 plates both conveyances and wills, the principles, it seems to us, 
 applying to jointures created by will, would alike be applicable ta 
 those created by deed or conveyance. Hence, in considering this 
 matter, we shall use the decisions indiscriminately so far as they 
 may enable us to lay down any rules governing this subject. 
 
 In arriving at the intention of the husband as expressed in the 
 instrument as to whether the provision was intended to be in lieu 
 of dower, we are at liberty, as in any other case in seeking the 
 intention of a party, to look to the situation of the husband and 
 the circumstances surrounding him, when he prepared the in- 
 strument.^ "But if such conveyance or devise" (that is, in lieu 
 of dower as provided in section 4 of chapter 65 of the Code) 
 "was before the marriage, without the assent or during the in- 
 fancy of the feme, or if it was after marriage, in either case the 
 widow may, at her election, waive such jointure and demand her 
 dower. And when she shall demand and receive her dower, the 
 estate so conveyed or devised to her shall cease and determine."* 
 
 Where an antenuptial agreement or contract is set up in bar 
 of the widow's right of dower, it must be made to appear that 
 the same was fair, reasonable and just, as between the parties, in 
 view of all the circumstances of the case at the time the contract 
 was made.* A contract relinquishing the wife's' expectant right 
 of dower dependent upon the death of the husband, in considera- 
 tion of marriage alone, will not be upheld in this state so as to- 
 
 ■ Shuman v. Shuman, 9 W. Va. 50; Bouglass v. Feay, i W. Va. 26, 34; Hig- 
 ginbotham v. Cornwell, 8 Gratt. 83; Tracey v. Shumate, 22 W. Va. 474, 499. 
 
 ' Tracey v. Shumate, 22 W. Va. 474, 499; Ambler v. Norton, 4 H. & M. 
 33; Atkinson, Ex'r, v. Sutton et al., 23 W. Va. 197. 
 
 3 Code, chap. 65, sec. 5. 
 
 ♦ Hinkle v. Hinkle. 34 W. Va. 142; Beard v. Beard, 22 W. Va. 130; Grogan 
 V. Garrison, 27 Ohio St. 59; Pierce v. Pierce ^t N. Y. 154. 
 
DOWER. 139 
 
 deprive the widow of her dower. ^ And where a provision is 
 made by the husband in lieu of his wife's expectant right of 
 dower, it will not be disturbed as fraudtilent at the suit of the 
 husband's creditors, when the land is not subject to any lien or 
 incumbrance at the time, provided such provision or settlement 
 is in value the equivalent of the contingent dower of the wife.'' 
 Where the husband and wife are both living, the rule for com- 
 puting the present value of the wife's contingent right of dower 
 is to calculate the expectation of Hfe of the wife and the prob- 
 ability of the joint lives of the husband and wife, and, from the 
 present value of an annuity payable while the wife hves, deduct 
 the present value of an annuity payable while both are living.' 
 
 § 97. Bar of dower by lapse of time — 
 
 Inasmuch as a widow's right to dower before its assignment is 
 generally treated as not being the subject of an action of eject- 
 ment, it might be concluded that the statute of limitations could 
 not affect her right to have it assigned to her by a court of equity 
 in a suit brought for that purpose. This question has been be- 
 fore our supreme court but twice, and in the first case in which 
 this question arose, being the only question in it, the court de- 
 cided that our statute of limitations with reference to actions of 
 ejectment appUes also to a suit by a widow for the assignment 
 of dower; and it is held in both cases that the statutory bar to 
 a widow's remedies for the recovery of her dower is the lapse 
 of ten years from the death of her husband, when her right to 
 
 § 98. Bar of dower Tvhere vsrife deserts husband and lives 
 apart from him — 
 
 "If a wife of her own free will leave her husband and live in 
 adultery, she shall be barred of her dower in his estate, unless 
 her husband be afterwards reconciled to her and suffer her to live 
 
 ■ Hinkle v. Hinkle, supra. 
 
 ' Blanton v. Taylor, Gilmer, 209; Quarles v. Lacey, 4 Munf. 251; Gosden 
 V. Tucker's Heirs, 6 Munf. i; Harvey v. Alexander, i Rand. 219; Taylor v. 
 Moore; 2 Rand. 563; William & Mary College v. Powell, 12 Gratt. 372-385; 
 Glascock V. Brandon, 35 W. Va. 85; s. c. 12 S. E. Rep. 1102. 
 
 3 Strayer v. Long et al., 86 Va. 557; s. c. 10 S. E. Rep. 574. 
 
 * Smith V. Welirle, 41 W. Va. 270, 23 S. E. Rep. 712; Morris v. Roseberry, 
 46 W. Va. 24, 32 S. E. Rep. loig. 
 
140 EQUITY PRINCIPI,ES. 
 
 with him. Or, if she voluntarily leave her husband without 
 cause such as would entitle her to a divorce from the bond of 
 matrimony or from bed and board, and without such cause and 
 )f her own free will be living separate and apart from him at the 
 time of his death, she shall be barred of her dower. ' ' ^ Under 
 this law is included a widow who had, nine years before it was en- 
 acted, left her husband without such cause, as is specified therein, 
 and which leaving or desertion continued for two years after the 
 law was enacted, and until the death of her husband, and who 
 was living separate and apart from her husband when he died.' 
 
 ' Code, chap. 65, sec. 7. 
 
 ' Thornburg v. Thornburg, Adm'r, 18 W. Va. 522. 
 
EQUITABI^E ESTOPPBI.. I4I 
 
 CHAPTER XIV. 
 
 EQUITABLE ESTOPPEL. 
 
 ? 99. Nature and definition of equitable estoppel. 
 
 IOC. When estoppel applicable to municipal corporations, 
 
 loi. The law of estoppel applies to private corporations. 
 
 102. The law of estoppel as applied to married women. 
 
 103. Infants, as a rule, not subject to the law of estoppel. 
 
 104. Doctrine of estoppel cannot be invoked when in contravention of law 
 
 or public policy. 
 
 105. Cases illustrative of the doctrine of estoppel. 
 
 106. Certainty and mutuality of estoppel. 
 
 § 99. Nature and definition of equitable estoppel — 
 
 Equitable estoppel is the effect of the voluntary conduct of a 
 party, whereby he is precluded, both at law and in equity, from 
 asserting the rights which might, perhaps, otherwise have ex- 
 isted, either of property, of contract, or of remedy, as against 
 another person, who has, in good faith, relied upon such conduct, 
 and has been led thereby to change his position for the worse, 
 and who on his part acquires some corresponding right, either of 
 property, of contract, or of remedy.^ It arises where one is 
 prejudiced by the willfyl act or declaration of another upon whose 
 conduct the former has rightfully acted.' 
 
 "A party who by his acts, declarations, or admissions, or by 
 failure to act or speak, under circumstances when he should do 
 so, either designedly or with willful disregard to the interests of 
 others, induces or misleads another to conduct or dealings which 
 he would not have entered upon but for this misleading influence, 
 will not be allowed afterwards to come in and assert his right to 
 the detriment of the person so misled. ' '* This is the latest ex- 
 
 ' Edwards v. Dickson, 66 Tex. 613. 
 
 ' Ensel v. Levy et al., 46 Ohio St. 255; s. c. 19 N. E. Rep. 597. 
 
 3 Norfolk & W. R. Co. v. Perdue, 40 W. Va. 442; s. c. 21 S. E. Rep. 
 755. In the case of Bate v. Swiger, 40 W. Va. 420, 21 S. E. Rep. 874, 
 Brannon, J., says: "Where one, by words or conduct, intentionally causes 
 another to believe in the existence of a certain state of things, or such words 
 or conduct are of such a nature as he has reason to believe, and such other. 
 
142 EQUITY PRINCIPLES. 
 
 pression of our court as to what is an estoppel in pais, and is a 
 complete definition of an equitable estoppel. 
 
 In the case of Hanly v. Waterson,^ the court, in the course of 
 its opinion, says that "estoppels in pais depend upon facts which 
 are rarely in any two causes precisely the same. The principle 
 upon which they are applied is clear and well defined. A party 
 who by his acts, declarations, or admissions, or by failure to act 
 or speak under circumstances where he should do so, either de- 
 signedly or with willful disregard to the interests of others, in- 
 duces or misleads another to conduct or dealings which he would 
 not have entered upon but for this misleading influence, will not 
 be allowed afterwards to come in and assert his right to the detri- 
 ment of the person so misled. That would be a fraud."* 
 
 It is said that whenever an act is done, or a statement made, by 
 a party, which cannot be contradicted without fraud on his part, 
 and injury to others, whose conduct has been influenced by the 
 act or admission, the character of an estoppel will attach to what 
 otherwise would be mere matter of evidence.* And a false repre- 
 sentation or concealment of material facts, or a design to mis- 
 lead, is not necessary to constitute an equitable estoppel by an 
 act which was voluntary and calculated to mislead, and actually 
 has misled another acting in good faith.* 
 
 The constituent and essential elements of an equitable estoppel, 
 dedudble from the authorities, are: (i) Acts, declarations or 
 conduct amounting to fraud, misrepresentation or concealment of 
 a material fact or state of facts; (2) The party to whom the 
 estoppel is chargeable must have acted with knowledge, actual or 
 constructive, of the untruthfulness of the matter of which the 
 estoppel is predicable; (3) The party rel3dng on the estoppel 
 must have been ignorant of the matter, and it must appear that 
 
 not knowing to the contrary, acts thereon, the'former will be estopped from 
 averring or claiming under a different state of things, then existing and 
 known to him, to the prejudice of the other party." 
 
 ' 39 W. Va. 214, 19 S. E. Rep. 536. 
 
 ' The court here has followed the case of Jowers v. Phelps, 33 Ark. 468. 
 
 3 Union Mut. Life Ins. Co. v. Slee, 123 111. 57; s. c. 12 N. B. Rep. 543. 
 
 < Town of Brookhaven v. Smith, 118 N. Y. 634; s. c. 7 L. R. A. 755; Kel- 
 ley V. Fisk, no HI. 552; s. c. 11 N. E. Rep. 453; Quick v. Milligan, 108 Ind. 
 419; s. c. 9 N. E. Rep. 392; Ward v. Berkshire Life Ins. Co. 108 Ind. 301; s. 
 c. 9 N. E. Rep. 361; Beebe v. Wilkinson, 30 Minn. 548; s. c. 16 N. W. Rep, 
 450; Tiffany v. Anderson, 55 Iowa, 405; s. c. 7 N. W. Rep. 683; Coleman v 
 Pearce, 26 Minn. 123; s. c. i N. W. Rep. 846. 
 
EQUITABI<E ESTOPPBI.. 143 
 
 liis lack of knowledge or information was not superinduced by 
 his neglect; (4) The acts, declarations and conduct of the party 
 sought to be estopped must have been of such a character as to 
 cause or induce one to act upon them; and (5) The party af- 
 fected must have immediately or promptly acted upon the matter 
 of estoppel and to his detriment or injury.^ 
 
 In order that a representation may operate as an estoppel, it 
 must be shown to have been a statement of fact, as distinguished 
 from a mere statement of law, and must in all ordinary cases 
 liave reference to a present or past state of things, and not to a 
 future matter or the expression of mere intention or opinion.* 
 
 The term equitable estoppel is now used in contradistinction 
 to estoppel by deed or record, and not because they are adminis- 
 tered in a court of equity, as they are recognized and applied in 
 courts of law also, and just as readily and freely;' except, 
 
 ' Fetter on Equity, 47-49; Lux v. Haggin, 69 Cal. 255; Burke v. Grant, 
 116 m. 124; s. c. 4 N. E. Rep. 655; Brooke v. N. Y., etc., R. Co., 108 Pa. St. 
 529; s. c. I Atl. Rep. 206; Carpenter v. Osbum, 102 N. Y. 552; s. c. 7 N. E. 
 Rep. 823; Osbum v. McClelland, 43 Otio St. 284; s. c. i N. E. Rep. 644; 
 I/aughlin v. Mitchell, Bk. 30, U. S. L. ed. 987; House v. Montgomery (Mo. 
 App.), I West. 709; Armstrong V. Levan, 109 Pa. St. 177; s. c. i Atl. Rep. 
 204; Quick V. Milligan, 108 Ind. 419; s. c. 9 N. E. Rep. 392; Sessions v. 
 Rice, 70 Iowa, 306; Fowler v. Parsons, 143 Mass. 401; s. c. 9 N. E. Rep. 799; 
 Fletcher v. McGill, no Ind. 395; s. c. 10 N. E. Rep. 651; Hyatt v. Burliug- 
 ton, etc., R. Co., 68 Iowa, 662; Sturtevant v. Wallack, 141 Mass. 119; s. c. 4 
 N. E. Rep. 615; Schaidt v. Blaul, 66 Md. 141; >s. c. 6 Atl. Rep. 669; Gill v. 
 Hardin, 48 Ark. 409; Columbus v. Alger, 44 Ohio St. 484; s. c. 8 N. E. Rep. 
 303; Gufiey V. O'Reilley (Mo.), 5 West. 338; State v. Graham, 21 Neb. 329; 
 Stone V. Tyree, 30 W. Va. 687; s. c. 5 S. E. Rep. 878; B. & O. R. R. Co. v. 
 Vauderwarker, 19 W. Va. 265; Steenrod v. Railroad Co., 27 W. Va. i; Nease 
 V. Insurance Co., 32 W. Va. 283; s. c. 9 S. E. Rep. 233; Core v. Wigner's 
 Heirs, 32 W. Va. 277; s. c. 9 S. E. Rep. 36; Hall v. Wadsworth, 35 W. Va. 
 375; s. c. 14 S. E. Rep. 4; Bon Aqua Imp. Co. v. Standard Fire Ins. Co., 34 
 W. Va. 764; s. c. 12 S. E. Rep. 771; Hatfield v. Workman et al., 35 W. Va. 
 578; s. c. 14 S. E. Rep. 153. 
 
 = Mason v. Harper's Ferry Bridge Co., 28 W. Va. 639. 
 
 3 2 Herman on Estoppel and Res Judicata, 2 736, pp. 865, 866; Davis v. 
 Davis, 26 Cal. 23, 85 Am. Dec. 157, was an action of ejectment in which the 
 •defense of estoppel in pais was allowed; Titus v. Moss, 40 Me. 348, 63 Am. 
 Dec. 665, was an action of trespass quare clasumf regit in which the defense 
 was allowed; Wood v. Kirk, 28 N. H. 324, 61 Am. Dec. 614, was an action of 
 assumpsit upon a note in which the defense of estoppel in pais was resorted to; 
 Thrall v. Lathrop, 30 Vt. 307, 73 Am. Dec. 306, was an action of trover for a 
 heifer, in which the defense was resorted to, but the evidence was insufficient 
 to sustain it; Drew v. Kimball, 43 N. H. 282, 80 Am. Dec. 163, was an action 
 
144 EQUITY PRINCIPLES. 
 
 perhaps, only in those cases involving the relationship of princi- 
 pal and surety, and the defense is sought to be made by the 
 surety against his principal.* 
 
 In two recent cases decided by our court,'' it is stated that 
 equity is the proper forum in which to assert an equitable estoppel; 
 but this must not be understood to mean that it is the exclusive 
 court wherein this defense may be made. 
 
 The law of estoppel does not extend to declarations or repre- 
 sentations made to one party, so as to operate in favor of another 
 not in privity with him to whom the declarations or representa- 
 tions are made,' unless the declaration or admission is so general 
 in its terms, or made under such circumstances, as to indicate 
 that it was intended to reach or influence third persons, or the 
 community at large, when it will then be carried so far as to pro- 
 tect every one who may be presumed to have acted on or been 
 governed by it.* But an assignee has the same right or benefit 
 from an estoppel that his assignor may urge or rely upon.^ And 
 an assignee is also subject to the same estoppel as his assignor.* 
 
 of trover and conversion; Caldwell v. Auger and Herbert, 4 Minn. 277, 77 
 Am. Dec. 515, was an action at law for the recovery of a barge, in which this 
 defense was used; Taylor v. Zepp, 14 Mo. 482, 55 Am. Dec. 113, was an 
 action of ejectment in which this defense of estoppel in pais was allowed; 
 Brown v. Wheeler, 17 Conn. 345, 44 Am. Dec. 550, was an action of trespass 
 guare clausum /regit, in which the defense was used; in Dickerson v. 
 Cologne, 100 U. S. 578, 25 L. ed. 618, and Kirk v. Hamilton, 102 U. S. 68, 26 
 1/. ed. 79, the defense was allowed in actions of ejectment. See also the 
 following cases: Durham v. Alden, 20 Me. 228; Rangeley v. Spring, 21 Me. 
 137; Hatch V. Kimball, 16 Me. 146; Marriner v. Railroad Co., 26 Wis. 84; 
 Brown v. Bowen, 30 N. Y. 519; McCune v. McMichael, 29 Ga. 312; Beaup- 
 land v. McKeen, 28 Pa. St. 124; Shaw v. Beebe, 35 Vt. 205; Snow v. Hutch- 
 ins, 160 Mass. 117; Duke v. Griffiths, 9 Utah, 476; Zouch v. C. & O. R. R. 
 Co., 36 W. Va. 524, 17 L. R. A. 116; Columbus v. Columbus St. R. Co., 45 
 Ohio St. 98, 12 N. E. Rep. 651, 656; Barnard v. German Am. Sem., 49 Mich. 
 444, 13 N. W. Rep. 811. 
 
 ' Poling V. Maddox, 41 W. Va. 779, 24 S. E. Rep. 999. 
 
 =■ Hanly v. Waterson, 39 W. Va. 214; s. c. 19 S. E. Rep. 536; Norfolk & 
 W. R. Co. V. Perdue, 40 W. Va. 442; s. c. 21 S. E. Rep. 755. 
 
 3 Brickley v. Edwards, 131 Ind. 3; s. c. 30 N. E. Rep. 708. * Idem. 
 
 s Krathwohl v. Dawson et al., 140 Ind. i; s. c. 39 N. E. Rep. 496. 
 
 * 2 Herman on Estoppel and Res Judicata, 977. 
 
EQT7irABI<E ESTOPPEL. 145 
 
 § 100. When estoppel applicable to municipal corpora- 
 tions — 
 
 The law of estoppel is quite different in its application to pub- 
 lic corporations from that which applies to private corporate 
 bodies. Whenever the officers of a municipal corporation have 
 acted without the warrant or authority' of law, or have exceeded 
 their plain statutory power or duty, nothing can be predicated 
 thereon so as to bind the corporation or the citizens whom the 
 corporation represents by matter of estoppel in pais} The rea- 
 son of this rule is that the rights, powers and duties of these 
 corporations are prescribed by law, and every person is presumed 
 to know the nature and extent of the authority of such bodies, 
 and therefore no one can claim to have been deceived or misled 
 by the acts of the corporation done through their agents and 
 representatives.^ But where a municipality has power to act, 
 and it is irregularly exercised, or there are defects and omissions 
 in exercising the authority conferred by law, the doctrine of 
 equitable estoppel may well be applied by the courts.' And a 
 corporation may be estopped by the action of its proper officers 
 when it is acting in its private, as contradistinguished from its 
 governmental capacity, and has lawful power to do the act.* 
 Thus, where a city has furnished the plans for a piece of work to 
 be done by a contractor in accordance therewith, and such work 
 is being done in conformity thereto, the city is estopped from de- 
 nying its authority to submit such plans and declaring a forfeit- 
 ure of the contract.* So mvmicipal corporations are estopped, as 
 against bona fide holders of municipal bonds, from setting up as 
 a defense to an action thereon that all the preliminary steps neces- 
 sary to authorize the issue of the bonds were not taken, when 
 the officers who have charge of the issue of such bonds are espe- 
 cially or impliedly authorized to determine whether all the condi- 
 tions precedent to the issue of valid bonds have been complied 
 
 • Platter v. County of Elkhart, 103 Ind. 360; s. c. 2 N. E. Rep. 544; Town 
 of Mentz v. Cook, 108 N. Y. 504; s. c. 15 N. E. Rep. 541; Seeger v. Mueller, 
 133 111. 86; s. c. 24 N. E. Rep. 513, 514; Webb v. Demopolis, 95 Ala. 116; 
 s. c. 21 L. R. A. 62; Eichenlaub v. St. Joseph, 113 Mo. 395; s. c. 18 L. R. 
 A. 590. 
 
 " Seeger v. Mueller, supra; Abell v. Prairie Civ. Tp., 4 Ind. App. 599; 
 s. c. 31 N. E. Rep. 477. 3 2 Herman Est. and Res Judicata, 1365. 
 
 ■• City of Chicago v. Sexton, 115 111. 230; s. c. 2 N. E. Rep. 263'. 
 
 5 City of Chicago v. Sexton, supra. 
 
146 EQUITY PRINCIPtBS. 
 
 with. Nor is it necessary to estop the corporation that this 
 statement should set forth in detail that all the preliminary steps 
 have been taken. It is sufficient that it declare that the bonds 
 are issued in pursuance of a certain statute, specifying it. 
 Neither is it essential that the officers issuing the bonds should 
 be expressly authorized to determine such questions. It is suffi- 
 cient if they are given full control of the matter.^ But where a 
 municipality has attempted to issue bonds, or to do other acts, 
 which are ultra vires, the principle of estoppel cannot be applied 
 so as to enable a party to make the corporation liable upon such 
 bonds, or for acts done by the corporation.^ 
 
 ' 'A contract is ultra vires when it is not within the scope of the 
 powers of the corporation to perform it, under any circumstances, 
 or for any purpose, or with reference to the rights of certain par- 
 ties, when the corporation is not authorized to perform it with- 
 out their consent, or with reference to some specific purpose, 
 when it is not authorized to perform it for that purpose, although 
 fully within the scope of the general powers of the corporation, 
 with the consent of the parties interested, or for some other pur- 
 pose. When a contract is not necessarily beyond the scope of 
 the power of the corporation by which it was made, it will, in 
 the absence of proof to the contrary, be presumed to be valid. 
 Corporations are presumed to act within their powers." ' 
 
 § loi. The law of estoppel applies to private corpora- 
 tions — 
 
 ' 'Estoppels technically so called, and estoppels in pais, operate 
 for and against private corporations. A corporation is bound by 
 
 ' Coler V. Dwight School Township, 3 N. Dak. 249; s. c. 28 L. R. A. 649; 
 Bernards Tp. v. Morrison, 133 U. S. 523, 33 L. ed. 726; Oregon v. Jennings, 
 119 tJ. S. 74-92, 30 I/, ed. 323-329; Moultrie County v. Rockingham Ten Cent 
 Sav. Bank, 92 TJ. S. 631, 23 L. ed. 583; Coloma v. Eaves, 92 U. S. 484, 23 1,. 
 ed. 579; Dixon County v. Field, iii U. S. 83, 28 L. ed. 360; Humboldt Tp. 
 V.Long, 92 U. S. 642, 23 L. ed. 752; Kno? County Comrs. v. Aspinwall, 62 
 U. S. 21, How. 539, 16 L. ed. 208; Fulton v. Riverton, 42 Minn. 395, 15 Am., 
 Eng. Enc. Law, pp. 1295 et seq.; Burroughs, Pub. Secur., 299 et seq. 
 
 = Parkersburg v. Brown, 106 U. S. 487, 27 L. ed. 238; South Ottawa v. 
 Perkins, 94 U. S. 260, 24 L. ed. 154; Bissell v. Spring Valley, no U. S. 162; 
 28 I/, ed. 105; Dixon County v. Field, no U. S. 83, 28 L. ed. 360; Union 
 School Tp. V. First Nat. Bank, 102 Ind. 464; s. c. 2 N. E. Rep. 194. 
 
 3 3 Herman, Estp. and Res Judicata, 1313. 
 
EQUITABI.B SSTOPPEL. 147 
 
 an estoppel, and has no more right to rescind a contract once 
 legally made than an individual has." ^ 
 
 A corporation, quite as much as an individual, is held to a 
 careful adherence to truth in their dealings with mankind, and 
 cannot, by their representations or silence, involve others in 
 onerous engagements, and then defeat the calculations and claims 
 which their own conduct has superinduced.'' 
 
 These corporations have the power to waive their rights, and 
 are boimd by estoppel in pats like natural persons. They can 
 claim no exemption from the operation of those rules and maxims 
 which are established to enforce good faith and fair dealing 
 among individuals.^ Thus, when a railroad company, which 
 had entered into an agreement with another company, granted 
 its road-bed to the latter on certain conditions, the grantee took 
 possession and expended large sums of money thereon, which 
 the stockholders and directors did not object to at the time, it 
 was afterwards estopped from denying the validity of the agree- 
 ment on the ground of irregularity, or that it was ulira vires.* 
 
 In this connection, it may not be out of place to state that 
 when a corporation has received the money or property of an in- 
 dividual, under color of authority, and has appropriated it to its 
 necessary and beneficial use, it will not be heard to assert its 
 want of power to pay the value of what it has received and still 
 retains.'' 
 
 In the application of the doctrine of ulira vires to corporate 
 acts, the courts make a distinction as to contracts executed and 
 executory; as to the former, private corporations, at least, are 
 estopped from defending their enforcement on the ground of lack 
 of power to make the contracts, when they have had the benefit 
 thereof, and nothing remains on their part but the payment of 
 the money; to uphold such a defense would be the rankest in- 
 justice, and to prevent such a wrong, the law of estoppel is 
 invoked.^ 
 
 ' 2 Herman, Estp. 1303. ' Idem, 1303. 3 /dent, 1323, 1324. ■• Idem. 
 
 s Brass Foundry & Machine Works V. Parks Co., 115 Ind. 235-244; s. c. 
 17 N. E. Rep. 593; Schipper v. City of Aurora, 121 Ind. 154; s. c. 6 L. R. A. 
 318, 2 Dill., Munc. Corp. (4th ed.), p. 531, note; Union Water Co. v. Mur- 
 phy's Flat Filming Co., 22 Cal. 630; Morris & E. R. Co. v. Sussex R. Co., 
 20 N. J. Eq. 452; Whitney Anns Co. v. Barlow, 63 N. Y. 62. 
 
 ' Rock Island v. McEniry, 39 111. App. 218; Merritt v. Millard, 4 Keyes, 
 208; Parish v. Wheeler, 22 N. Y. 503; Zabriskie v. Cleveland, C. & C. R. Co., 
 
148 EQUITY PRINCIPI,ES. 
 
 Where a party has dealt with a corporation as such, whether 
 under its true or an assumed name, he is estopped from calling 
 in question the existence of such corporation.^ Thus, where a 
 party has accepted a lease from a corporation under a wrong 
 name, taken possession of the land thereunder, and paid the rent 
 to such corporation, he will not be permitted to question the fact 
 of the correctness of such name.^ So, where one has subscribed 
 to the capital stock of a corporation, he will not be heard to 
 question the corporate existence thereof.* To this principle may 
 be referred the doctrine that where one has dealt with a foreign 
 corporation, which has not complied with the local laws of the 
 state where it proposes to transact business, that the party so 
 deaUng with the corporation will not be heard to allege the 
 failure of such corporation to comply with such local state laws, 
 in order to defeat an action brought by the corporation to en- 
 force a liability created by such third party.* 
 
 § 102. The law of estoppel as applied to married women — 
 
 The authorities lay down the doctrine that where a married 
 woman has the power to contract with reference to her separate 
 estate, or to act as 2^ feme sole with reference thereto, that she is 
 bound by an estoppel in pais touching her own property and 
 rights, as if she were a. feme sole} 
 
 64 U. S., 23 How. 381, 16 L. ed. 488; Bissell v. Michigan, S. & N. J. R. Co., 
 22 N. Y. 258; Gary v. Cleveland & T. R. Co., 29 Barb. 35; Chapman v. Mad 
 River & L. E. R. Co., 6 Ohio St. 137. See note to Scranton Electric Light 
 & Heat Co.'s Appeal, 1 L. R. A. 285. 
 
 » Marmet Co. v. Archibald, 37 W. Va. 778; s. c. 17 S. E. Rep. 299; Capps 
 & McCreary v. Hastings Prospecting Co., 40 Neb. 470; s. c. 24 L. R. A. 259; 
 Wadesboro Cotton Mills Co. v. Bums, 114 N. C. 353; s. c. 19 S. E. Rep. 238. 
 
 " Mannet Co. v. Archibald, supra. 
 
 3 Wadesboro Cotton Mills Co. v. Burns, supra. 
 
 ♦Washington Mill Co. v. Bartlett, 7 Am. R. R. & Corp. Rep. 394, 
 note, 405. 
 
 5 Lane v. Sclemmer, 114 Ind. 296; s. c. 15 N. E. Rep. 454; Noel v. Kinney, 
 106 N. Y. 74; Wilder v. Wilder, 89 Ala. 414; s. c. 9 L. R. A. 97; Galbraith v. 
 Lunsford, 87 Tenn. 89; s. c. i L. R. A. 522; Weathersbee v. Farrar, 97 N. C. 
 106; Baum V. Mullen, 47 N. Y. 577; Dobbin v. Cordiner, 41 Minn. 165; s. c. 
 4 L. R. A. 333; Long v. Crossman, 119 Ind. 3; s. c. 4 L. R. A. 783. The fol- 
 io-wing is taken from the notes appended to the case of Galbraith v. Luns- 
 ford, supra, I L. R. A., at pages 523, 524: "Estoppel; principle applies to 
 married women. — Wherever statutes enable a married woman to enter into 
 contracts as though single, there is no reason why the doctrine of estoppel 
 should not apply to her without any limitation (Dinaens v. Clancy, 67 Barb. 
 
EQUlTABtE ESTOPPEL. 1 49 
 
 But before the act of a married woman can be urged as an es- 
 toppel against her, she must have had the legal power and right 
 to act, for if she be under disability as to such matter by reason 
 of the law or otherwise relating to the matter, she cannot be 
 bound by an estoppel in pais} 
 
 Thus, when the law requires the joinder of the husband in a 
 deed conveying the wife's separate property and a privy examina- 
 tion of her separately and apart from her husband, in order to 
 pass her title to such real estate, if she attempts to make such 
 conveyance without the observance of either of these requirements 
 of the statute and signs and delivers a deed for her separate real 
 estate without such joinder or privy examination, she is not 
 estopped from afterwards conveying the same property to another, 
 and that, too, without refunding the purchase-money received by 
 her on the first invalid conveyance.' Nor will she or her second 
 vendee be estopped from recovering the land from the first vendee 
 of such married woman in an action of ejectment, though such 
 first vendee may have paid all the purchase-money and been put 
 in possession of the land by the wife herself.' The reason of this 
 is, that at common law a wife could not convey real estate at all, 
 
 566; Fryer v. Rishell, 84 Pa. 521; Towles v. Fisher, 77 N. C. 437; Godfrey v. 
 Thornton, 46 Wis. 677); and even she may be thus estopped by the acts of 
 her husband (McCaa v. Wolf, 42 Ala. 389; Bodine v. Killeen, 53 N. Y. 93; 
 Treman v. Allen, 15 Hun. 4; Hockett v. Bailey, 86 111. 74) ; but see for cir- 
 cumstances in which she has been held not estopped: Oglesby Coal Co. v. 
 Pasco, 79 ni. 164; Upshaw v. Gibson, 53 Miss. 341; McBeth v. Trabue, 69 
 Mo. 642; 2 Pom., Eq. Jur. 279. 
 
 "Where she represents, by sworn statement, that a contract is for her own 
 benefit, and induces another to act in good faith on such statement, she is 
 estopped from asserting that the contract is one of suretyship, which, by the 
 Indiana Married Woman's Act of 1881, is excepted from the general power 
 conferred upon married women to contract. Ward v. Berkshire L. Ins. Co., 
 6 West. Rep. 596, 108 Ind. 301. 
 
 "A married woman who represents that she is executing a mortgage to se- 
 cure money for her own use is estopped, as against one who in good faith 
 relies on such representations, to claim that she executed the mortgage as 
 security for her husband. Rogers v. Cent. L. Ins. Co., 9 West. Rep. 828, 
 III Ind. 343." 
 
 See also the note to the case of Speier v. Opfer, 2 L. R. A. 345 et seq., and 
 the note to the case of Cook v. Walling, Idem, 769 et seq. 
 
 ' Weathersbee v. Farrar, 97 N. C. 106; s. c. i S. E. Rep. 616; Williamson 
 V. Jones, 43 W. Va. 562, 27 S. E. Rep. 411. 
 
 " Central Land Co. v. Laidley, 32 W. Va. 134; s. c. 9 S. E. Rep. 61. 
 
 ' Idem. 
 
I50 EQUITY PRINCIPLES. 
 
 a deed from her as to her real estate being absolutely void, and 
 as the right to make such conveyance exists only by virtue of 
 statute, its terms must be followed.^ 
 
 An able author says that ' 'in respect to her real estate, the 
 general rule is that a married woman can only divest herself of 
 title in the manner pointed out by statute. But when the ques- 
 tion is not whether a married woman shall be aided in the assertion 
 of an equitable right or interest, but whether her legal rights shall 
 be taken away or restrained, equity will follow the law and re- 
 fuse to hold that the disabilities, which it imposes for wise ends, 
 can be removed even for the prevention or redress of fraud. 
 The case where a married woman may be estopped by standing 
 by while her property is sold, without warning the purchaser, is 
 only in cases where her power over the property is unfettered, and 
 may be exercised without the assent of her husband. The law pro- 
 tects the wife, but gives her no license to commit a fraud. The acts 
 and representations of the wife, in respert to her rights of prop- 
 erty, made to deceive others, and which do deceive others to their 
 injury, will preclude her from asserting her claim against those 
 who have acted on her representations and admissions." '^ But 
 ' 'a married woman standing by and seeing costly expenditures 
 made, or is silent when she should have spoken, or makes a rep- 
 resentation, which is acted on, will be estopped by such conduct. 
 Thus, living under her maiden name, apart from her husband, 
 under a void decree of divorce, and acting and representing her- 
 self as a single woman, she binds herself by her acknoweledg- 
 ment of a deed as a single woman. So, a marrifed woman is es- 
 topped by her declarations given with her husband, to a pur- 
 chaser of a mortgage, by their certificate, that there is no legal 
 
 ' Idem. It is said in a note to this case in 3 L. R. A. 826, that: "In Penn- 
 sylvania, a separate deed by the wife is inefiectual to pass title; both hus- 
 band and wife must join in the conveyance. Buchanan v. Hazzard, 95 Pa. 
 240; Richards v. McClelland, 29 Pa. 385; Glidden v. Strupler, 62 Pa. 400- 
 Dunham v. Wright, 53 Pa. 167. But see Elsey v. McDaniel, 95 Pa. 472; r 
 Devlin, Deeds, 95. 
 
 "In Indiana, it is held that, without her husband joining, her deed is suf- 
 ficient to convey color of title. Wright v. Kleyla, 104 Ind. 223. 
 
 "In Kentucky, the forms prescribed by statute are held imperative (Elliott 
 V. Peirsol, 26 U. S., 1 Pet. 328, 7 L. ed. 164); while in Alabama, it is held 
 that a literal compliance with the statute form is not required. Gates v. 
 Hester, 8i Ala. 357." 
 
 ' 2 Herman, Estp. 1235, 1236. 
 
EQmTABI,E; ESTOPPEL. 151 
 
 or equitable defense to the same. . . . So, where she is the 
 owner of a separate estate, and executes a mortgage thereon to 
 secure a loan, and makes an affidavit that the money is to be used 
 for the payment of the purchase-money due on the property, she 
 is estopped from controverting this fact, where she undertakes to 
 claim it as a homestead. Coverture will not be allowed to be in- 
 voked as a doak or means to commit fraud." ^ But in West Vir- 
 ginia she cannot be barred of the title to her separate real estate, 
 except in the manner prescribed by the statute, even by her fraud- 
 lent conduct, and hence cannot be estopped from asserting title 
 thereto by any mere act in pais distinct from her conveyance 
 thereof.' It is otherwise as to her personal property.' 
 
 § 103. Infants, as a rule, not subject to the law of es- 
 toppel-:— 
 
 As a general rule, an estoppel should not be predicated upon 
 the acts and conduct of an infant.* "It has been an almost uni- 
 versal rule that estoppels do not apply to infants and femes covert. ' ' * 
 Of course, as applied to married women, the rule as here an- 
 nounced, is taken in subordination to the principles already laid 
 down * with reference to this class of persons, with their enlarged 
 capacities to contract under the numerous married woman's acts 
 of the various states, including our own. The author just quoted 
 from, speaking on this subject, further says: "As a general rule, 
 infants are not bound by estoppels. It has been held even where 
 an infant represents himself as being of full age, he is not estopped 
 from setting up infancy as a defense to a contract entered into 
 under such fraudulent representation. It has also been declared 
 that legal incapacity cannot be removed, even by fraudulent rep- 
 resentations, so as to create an estoppel in acts to which the in- 
 capacity relates. It is held that estoppels in pais are not applica- 
 
 » Idem, iiyj, 1238. " Williams v. Jones, supra. 3 Idem, 
 
 < Rundle v. Spencer, 67 Mich. 189; s. c. 34 N. W. Rep. 548; Rice v. Boyer, 
 
 108 Ind. 472; s. c. 9 N. E. Rep. 420; Harman v. Smith, 38 Fed. Rep. 482; 
 
 Speier V. Opfer, 2 L. R. A. 345, note page 346; Wilie v. Brooks, 45 Miss. 542; 
 
 Montgomery v. Gordon, 51 Ala. 377; Upshaw v. Gibson, 53 Miss. 341; Wie- 
 
 lana v. Kobick, no 111 .16; s. c. 51 Am. Rep. 676; Steed v. Petty, 65 Tex. 
 
 490; Lackman v. Wood, 25 Cal. 147; Brown v. McCune, 5 Sandf. (N. Y.) 
 
 224; Fox V. Drewry, 00 Ark. 000; s. c. 35 S. W. Rep. 533; Simms v. Bver- 
 
 hardt, 102 U. S. 300. 
 5 2 Herman, Espt. 1242. ^Ante, \ 102. 
 
152 EQUITY PRINCIPLES. 
 
 ble to infants, . . . and that fraudulent misrepresentations 
 as to capacity cannot be the equivalent for actual capacity." ^ 
 
 And inasmuch as an infant cannot be bound by an estoppel in 
 pais, he cannot claim one against an adult, on the ground that it 
 would be lacking in mutuality.^ 
 
 "In all cases of judicial acts of a court, under an authority 
 not derived from the infant, they are binding and conclusive. 
 And a judgment against an infant in cases of tort, or contracts 
 which are absolutely binding on him, is as coUclusive upon him as 
 upon an adult.'" 
 
 Our statute provides that the sale of an infant's estate may be 
 made by a decree of the court having jurisdiction of the matter, 
 and when such sale shall have been confirmed by the court and a 
 conveyance of the estate made with covenants of special warranty, 
 it shall have the same effect as if the conveyance had been made 
 by the minor when of lawful age.* And it is laid down by high 
 authority that neither coverture nor infancy will excuse fraud; 
 that an infant who is privy to, or practices, a fraud, or commits a 
 tort, shall be bound in the same manner as if he had been an 
 adult. ^ ' 'Thus, where an infant fraudulently represents himself to 
 be of age and thus obtains credit for goods he is liable in equity, 
 though not at law, on the principle that a person shall not set 
 up his own iniquity as a defense, any more than as a cause of ac- 
 tion. Whenever an infant has arrived at years of discretion, by 
 direct participation, or by silence when he was called upon to 
 speak, has entrapped a party, ignorant of his title or of his 
 minority, into purchasing his property from another, or who is 
 selling real estate, represents himself to be of full age, and in- 
 duces the party to buy on the strength of that representation, he 
 cannot disaffirm his contract on the ground of infancy. Thus, 
 an infant conveyed land to her father for the purpose of enabling 
 him to borrow money thereon, by executing a mortgage to one 
 in ignorance of her minority. The money was loaned; and sub- 
 sequently the lender still being ignorant of her minority the 
 father conveyed the land in satisfaction of the debt. The infant 
 arriving at full age brought ejectment for the land. And it was 
 held that a court of equity would restrain her from asserting 
 
 » 2 Herman Estp., ? 1116, p. 1252. ' Montgomery v. Gordon, 51 Ala. 377. 
 3 Herman, Estp., ? 1122, p. 1259. * Code, 1891, chap. 83, sec. 17. 
 
 5 2 Herman Estp., p. 1255. 
 
EQUITABLE ESTOPPEL. I53 
 
 her legal title, and thus perpetrating a fraud. "^ And our own 
 court lays down the doctrine that positive intentional fraud will 
 bar an infnat of years of discretion, while mere silence or ac- 
 quiescence will not.** But the act, to constitute an estoppel, 
 must have been intentionally fraudulent, and not merely a 
 passive acquiescence.' 
 
 It frequently occurs that an infant either buys or sells prop- 
 erty, and then seeks to avoid paying for it, or brings a suit to 
 avoid the sale arid recover back the property that he had there- 
 tofore sold. If he is still in possession of the property purchased 
 he must pay the purchase-money.* And where he makes sale of 
 his own property and has received the money therefor, he must 
 refund the money, before he can maintain a suit to avoid or cancel 
 the contract of sale. He cannot have both the money and the 
 property, equity will not uphold such a claim. ^ 
 
 In the case of Mustard v. Wohlford, cited in the foot note, the 
 court, in the syllabus to the same, says: "If an infant after 
 coming of age avoids his contract for the sale of his property, 
 and sues to recover it, the purchaser is entitled to recover the 
 consideration received by the infant, or so much of it as then re- 
 mains in his hands in kind. But in a contract executory on his 
 part, if he has during infancy wasted, sold or otherwise ceased to 
 possess the consideration, and has none of it in his hand in kind 
 on his arrival at age, he is not liable therefor; and may recover 
 the property sold by him without accounting for the considera- 
 tion received." 
 
 § 104. Doctrine of estoppel cannot be invoked when in 
 contravention of la\v or public policy— 
 
 The principle of the law of estoppel may well apply in matter 
 of individual or private right or contract, but as to matters which 
 are forbidden by law or which are against public policy, the pub- 
 
 » Herman, Estop., i 1119, pages 1255, 1256. See Clark on Contracts, 262. 
 
 = Opinion of Brannon, J., in Williamson v. Jones, supra. 3 Idem. 
 
 * I Parsons on Contracts (6tli ed.), 320, 321. 
 
 5 Wilmore v. Stefler, 137 Ind. 127; s. c. 34 N. E. Rep. 357; Bumb v. Gard, 
 107 Ind. 575; Deford v. Mercer, 34 Iowa, 118; Lamkin v. Reece, 7 Ala. 170; 
 Bland v. Bowie, 53 Ala. 133; McCully v. Chapman, 58 Ala. 325; Merritt v. 
 Home, 5 Ohio St. 307; Smith v. Warden, 19 Pa. St. 424; Evans v. Snyder, 
 64 Mo. 516; Davis v. Handy, 37 N. H. 65; Colbert v. Daniels, 32 Ala. 314; 
 Storrs V. Barker, 6 Johns. Ch. 166; Mustard v. Wohlford, 15 Gratt. 329. 
 
154 SQUITY PRINCIPLBS. 
 
 lie are interested; and pubGc concerns cannot be made a matter 
 of private bargain. If the contract is executory, it will not be 
 enforced, and if it has been executed, the courts will not extend 
 relief.^ 
 
 Thus an estoppel cannot be predicated upon an oral promise 
 to pay the debt of a third party; * nor can it be relied on to pre- 
 vent an inquiry into the matter of usury, though already paid;' 
 neither can the doctrine of waiver or estoppel be applied to a 
 contract made by a public officer without authority for the per- 
 formance of work at less than the rates fixed therefor by statute, 
 so as to constitute a defense to a suit brought to recover the 
 full statutory rate of compensation.* 
 
 § 105, Cases illustrative of the doctrine of estoppel — 
 
 In the following instances, the courts held that the principles 
 of estoppel were properly applicable: Where one having title to 
 real estate, stands by and sees another sell the same, claiming to 
 have full power and authority so to do, and he does not assert his 
 own claim or title to the land, but permits an innocent party to 
 buy the land, he is estopped from thereafter asserting his claim 
 to the land, and equity will vest the legal title, under such cir- 
 cumstances, in the innocent purchaser;^ where one causes his 
 land to be sold for some purposes of his own, under a void judicial 
 proceeding, and he receives and retains the proceeds of sale, he 
 is estopped from afterwards questioning the validity of the sale;' 
 where a party leases the river bank in front of his land to another 
 for the use of a boom to be operated in the river opposite said 
 land, and who, after the boom is constructed, receives rent, year 
 after year, from the boom company for said land without protest, 
 he is estopped from objecting to the manner in which the boom 
 is constructed;^ a party having an option to purchase the timber 
 growing upon a tract of land, which is not limited as to time by 
 
 ■ Brown v. First National Bank of Columbus, 137 Ind. 655; s. c. 24 L. R. 
 A. 781; Hoffman v. Cheppea County, 77 Wis. 214; s. c. 8 t,. R. A. 781; Shor- 
 man v. Eakin, 47 Ark. 251; Calfe v. Burgess, 3 W. Va. 274; Tribble v. An- 
 derson, 63 Ga. 31; Smith v. Tramel, 68 Iowa, 662. 
 
 = Smith V. Tramel, supra. 3 Tribble v. Anderson, supra. 
 
 * Hoffman v. Chippewa County, supra. 
 
 5 Stone V. Tyree, 30 W. Va. 687; s. c. 5 S. E. Rep. 878. 
 
 « Williamson v. Jones, 39 W. Va. 231; s. c. 19 S. E. Rep, 436. 
 
 '• Rogers v. Coal River Boom & Driving Co., 39 W. Va. 272; s. c. 19 S. B. 
 R.ep. 401. 
 
EQUITABLY ESTOPPBI*. 155 
 
 Ms agreement, may by his own acts and by acquiescence in the 
 acts of another in cutting and removing such timber, and by as- 
 sisting in the removal of the same, pointing out the timber to the 
 men. engaged in cutting it, and raising no objections to the dis- 
 posal of such timber by the party asserting an adverse claim 
 thereto, estop himself from asserting any claim under his option;^ 
 where a landowner allows a railroad company to excavate a tun- 
 nel on his land without objection until the tunnel is completed, 
 and the railroad constructed through it, he is estopped from main- 
 taining an action for damages;^ where a married woman, who is 
 the owner of a tract of land lying on a creek, for a valuable con- 
 sideration, gives her verbal assent that a party may build a tram- 
 road along said creek, through her said lands, for the purpose of 
 transporting timber from lands lying above hers to market, and 
 in pursuance of said verbal assent said party, at considerable ex- 
 pense, under her immediate observation, constructs such road, 
 and operates the same for some time, a court of equity will not 
 permit her to obstruct said road, and thereby defeat its use as 
 aforesaid;' the recitals contained in a lease as to the number of 
 salt wells in the premises after the lease has been accepted and 
 acted on for more than two years by the lessee, with ample op- 
 portunity of knowing, not only the contents of the lease, but the 
 character and quality of the property leased, must be regarded as 
 conclusive of the fact between the parties to the said lease;* where 
 commissioners appointed under a decree to make a partition 
 between two part owners of a tract of land report such real 
 estate as partitionable, and divide the same between said 
 parties by actual survey, as shown by a plat returned with their 
 report showing the number of acres to which the parties are re- 
 spectively entitled, said parties may, by consent decree, without 
 awaiting the confirmation of said report of partition, agree that 
 said land may be sold by commissioners appointed by decree of 
 the court as an entire tract, or in separate tracts, as described 
 in said plat and report; and if at such sale, made under such 
 consent decree, the land that had been allotted to W. in said re- 
 port (against whose interest liens to the amount of its value 
 exists), is purchased by C. against whose parcel no liens exist, 
 
 ' Hanly v. Waterson, 39 W. Va. 214; s. c. X9 S. E. Rep. 536. 
 
 » Norfolk & W. R. R. Co. V. Purdue, 40 W. Va. 442; s. c. 21 S. E. Rep. 755. 
 
 3 Tufts V. Copen, 37 W. Va. 623; s. c. 16 S. E. Rep. 793. 
 
 -• Clifton V. Montague, 40 W. Va. 207; s. c. 21 S. E. Rep. 858. 
 
156 EQUITY PRINCIPLES. 
 
 the court may confirm said sale to C. without awaiting the sale 
 of the entire tract; and if the court subsequently, on motion, 
 confirm, said partition as tq the parcel allotted to C. , it will not 
 be regarded as error, and W. by his laches and acquiescence ip 
 the action of said commissioners, is estopped from objecting;' the 
 sureties of a deputy in his bond to the high sheriff for the 
 faithful discharge of his duties, are estopped from denying 
 that the principal was deputy, unless the bond is invalid;' a 
 party to instruments in writing, in the absence of all pretense of 
 fraud, is estopped from proving that he did not read the instru- 
 ments before executing them, and thus by parol obviate the effect of 
 written evidence;' where one conveys land with general warranty, 
 whereof at the time he has not the title, but afterwards acquires it, 
 such acquisition enures to the grantee, and the warrantor is es- 
 topped from denying that he had the title;* where after notice of as- 
 signment, a debtor expressly or impliedly promises to pay the debt, 
 he is estopped from setting up any defense he had against the as- 
 signor;' where it appears that the agent of plaintiff's intestate was 
 authorized by the latter to represent him in suits to sell his land 
 for debt, which fact was known to plaintiffs, who were claimants 
 of the land in litigation, and it also appears that they did not, 
 after intestate's death, revoke or question the agent's authority 
 during the pendency of the suits, they are estopped, after sale 
 has taken place, from setting up the agent's want of authority, 
 and of questioning the validity of the proceedings on the ground 
 of their not having been made parties thereto;* one who has 
 paid rent to the state for the use of certain oyster beds is es- 
 topped to deny the state's title thereto;' where a guardian con- 
 tracted to sell land belonging to his wards, by a contract which 
 showed on its face that he had no interest in the land, and no 
 right to convey, the vendees will be conclusively presumed to 
 have known this; and they, agreeing to purchase the land upon 
 the faith that the vendor would acquire title before the purchase 
 
 ■ Connell v. Wilhelm, 36 W. Va. 598; s. c. 15 S. E. Rep. 245. 
 
 ' Cecil V. Barly et al., 10 Gratt. 198. 3 Ware v. Starkey, 80 Va. 191. 
 
 * Gregory v. Peoples, 80 Va. 355. This case holds that a discharge in 
 bankruptcy releases the warrantor from liability for covenants broken, but 
 does not affect the estoppel, because the covenant runs with the land. 
 
 5 Stebbins & Lawson v. Bruce, 80 Va. 389. 
 
 « Marrow v. Brinkley, 85 Va. 55; s. c. 6 S. E. Rep. 605. 
 
 ? Hurst V. Dulany, 84 Va. 701; s. c. 5 S. E. Rep. 802. 
 
EQUITABLE ESTOPPBL. 157 
 
 money should be paid, which he actually did so acquire, will 
 be estopped from objecting that the contract is a nullity, and 
 specific performance will be enforced;' where a party has enjoyed 
 the benefit of a supersedeas bond, though it was executed by his 
 attorney at law alone, when the law required it to be executed 
 with security, in a proceeding to enforce the debt, after the ap- 
 peal has been dismissed, he will be estopped from alleging that 
 the supersedeas bond was invalid;' one owning or having any 
 interest in or charge upon land, knowing that another is about 
 to purchase it, who declares to such other person that he has no 
 interest in the land, and that the one proposing to sell has the 
 absolute right to the land, cannot set up any ownership, interest 
 or charge, then existing, hostile to the right acquired by such 
 purchaser;' a party who has purchased property under a con- 
 tract, and given his notes for the purchase money, and deliber- 
 ately executed a deed of trust to secure them, will not be readily 
 entertained in a court of chancery when he seeks to escape their 
 entire obligation by setting up counterclaims arising out of the 
 same contract, which existed when he executed the notes and 
 deed of trust, and about which he was then silent;* when a 
 forthcoming bond for property levied on under a distress warrant 
 has been voluntarily given, and the obligor has enjoyed the bene- 
 fit thereof by retaining possession of the property, he cannot, in 
 an action of debt on the bond, declare that it was invalid;' 
 where a change is made in the terms of a sale, with the assent 
 and partly for the benefit of one interested therein, he cannot be 
 heard to complain of such change;* and where a person has made 
 a verbal contract with another for the sale of land, put the pur- 
 chaser in possession, and such purchaser has paid the purchaser 
 money, and holds the actual and exclusive possession of such 
 land by virtue of such contract, and the verbal contract definite 
 and certain in its terms and clearly and satisfactorily proved, the 
 vendor becoming insolvent will be estopped from preventing 
 specific performance on the ground of the statute of frauds; he 
 cannot repudiate the contract and stop short of its execution.' 
 
 » Dodson V. Hays, 29 W. Va. 577; s. c. 2 S. E. Rep. 415. 
 
 » B. & O. R. R. Co.' V. Vanderwarker, 19 W. Va. 265. 
 
 3 Bates V. Swigeret al., 40 W. Va. 442; s. c. 21 S. E. Rep. 874. 
 
 * Farland v. Wood, 35 W. Va. 458; s. c. 14 S. E. Rep. 140. 
 
 s Hall V. Wadsworth, 35 W. Va. 375; s. c. 14 S. E. Rep. 4. 
 
 « Orr V. Chandler, 86 Va. 938; s. c. 11 S. E. Rep. 978. 
 
 7 Miller v Loretitz, 39 W. Va. 160; s. c. 19 S. E. Rep. 391. 
 
158 BQUITY PRINCIPI.es. 
 
 In the following cases, it was held that the doctrine of estop- 
 pel could not be invoked; an attaching creditor in this state, 
 who bid upon property at the sale under a mortgage in another 
 state upon property located in such other state, is not estopped 
 to insist upon his attachment lien on the property in this state, 
 the property being a line of railroad extending into this state 
 from such other state;^ if, before suit brought by the trustee in 
 the deed of assignment from an insolvent banking corporation to 
 recover the amount of discounted bills and notes fraudulently re- 
 ceived from the cashier without authority by a director of such 
 insolvent banking institution, the said trustee had paid such 
 director dividends on the indebtedness of such institution to him, 
 this fact does not work an estoppel to maintain such suit;^ where 
 a party sells and conveys, without warranty, a particular claim 
 or title to land, he is not thereby estopped from purchasing a 
 superior adverse or outstanding title and holding the land under 
 such superior title against the grantee of such particular claim or 
 title where there was no fraud or concealment in the sale of said 
 particular claim, as an estoppel is never extended beyond what 
 is called for by the plain import of the terms employed by the 
 grantor in the conveyance;' where a deed has been lodged in the 
 clerk's office and recorded, the purchaser, after taking it out and 
 discovering that the quantity of land was ascertained by surface 
 measurement, was not estopped to demand a horizontal measure- 
 ment, when he at . once informed the vendor that he would not 
 accept a surface measurement;* the fact that a husband negotiated 
 a loan with which to improve his wife's separate estate will not 
 estop him from asserting the invalidity of a deed of trust, exe- 
 cuted by her to secure the loan, on the ground that he did not 
 join therein, where he made no misrepresentations as to the state 
 of the title, and it did not appear that he was guilty of decep- 
 tion or wrongdoing of any sort;" the owner of land is not estopped 
 
 ' Chapman v. Railroad Co. , 26 W. Va. 300. 
 
 " Lamb v. Cecil, 25 W. Va. 288. 
 
 3 Kent V. Watson, 22 W. Va. 561; Western M. & M. Co. v. Peytona Can- 
 nel Coal Co., 9 W. Va. 406. 
 
 ■• Bartlett y. Bartlett, 37 W. Va. 235; s. c. 16 S. E. Rep. 450. In this state, 
 in ascertaining the quantity of land, each party has the right to have the 
 survey made by horizontal measurement, unless such party is estopped from 
 asserting such right, or has waived the same, or unless surface measurement 
 has been specially contracted for. 
 
 5 Taylor v. Cussen, 90 Va. 40; s. c. 17 S. E. Rep. 721. 
 
EQUITABLE ESTOPPEI,. 159 
 
 to claim title thereto by the fact that he kept silence while his 
 title was being disparaged in his presence, the disparaging re- 
 marks not being addressed to him;^ where a vendor of land exe- 
 cutes a deed of conveyance to the purchaser, in which he ac- 
 knowledges the receipt of the purchase-money and subjoins to 
 the deed a receipt in full for the same, and then delivers the deed 
 to the vendee, he is not thereby estopped in a court of equity 
 from showing that the purchase-money was not in fact paid as by 
 him acknowledged.'' 
 
 § io6. Certainty and mutuality of estoppel — 
 
 Every estoppel, because it concludeth a man to allege the 
 truth, must be certain to every intent, and ought not to be taken 
 by argument or inference.^ In order to make it available, it 
 inust be mutual; that is, both parties must be bound, or neither.* 
 
 " Fry V. Stowers, 92 Va. 13; s. c. 22 S. E. Rep. 500. 
 
 = Wilson V. Shelton, 9 Iveigh, 342; Radcliff v. High, 2 Rob. Rep. 271; Smith 
 V. Arthur, 110 N. C. 400, 15 S. E. Rep. 197. 
 
 ' Vanbibber v. Beime, 6 W. V. 168; I^orentz v. Lorentz, 14 W. Va. 809. 
 
 ■• Fnrgeson v. Jones, 17 Oreg. 204; s. c. 3 L. R. A. 620, 20 Pac. Rep. 842; 
 Bolingv. Mayor, etc., 3 Rand. 563, 576. 
 
l6o EQUITY PRINCIPI,BS. 
 
 CHAPTER XV. 
 EXECUTORS AND ADMINISTRATORS. 
 
 ^ loy. The appointment and qualification of personal representatives. 
 
 io8. Who may be appointed an executor or administrator. 
 
 109. The powers of executors and administrators. 
 
 110. The powers of an executor under a will, 
 iioa. The duties of personal representatives. 
 
 111. What to be charged as assets to the personal representative. 
 
 112. What the law regards as a devastavit. 
 
 113. The investment by the executor of the estate of his testator. 
 
 114. Stating the accounts of personal representatives and the charge of 
 
 interest therein. 
 
 115. Pajrment of legacies by the personal representative. 
 1 15a. As to payment of interest on legacies. 
 
 116. The different kinds of legacies. 
 
 ii6a. When real estate charged with payment of legacies. 
 
 117. The order of the payment of debts and claims by the personal rep- 
 
 resentative. 
 117a. The order in which the property of a testator should be applied in the 
 payment of his debts. 
 
 118. The commissions of personal representatives. 
 
 119. Surcharging and falsifying the accounts of personal representatives. 
 
 § 107. The appointment and qualification of personal rep- 
 resentatives — 
 The executor appointed by any will shall qualify by taking an 
 oath and giving a bond before the county court of the county in 
 which the will, or an authenticated copy thereof, is admitted to 
 record, or before the clerk thereof in vacation:^ and in case a 
 
 ' Code, chap. 85, sec. i. Our code provides for the probate of a. will as 
 follows: First. In the county wherein the deceased at the time of his death 
 had a mansion-house or known place of residence; or, 
 
 Second. If he had no such house or place of residence, then in the county 
 wherein any real estate devised thereby is situated; or, 
 
 Third. If there be no real estate devised thereby, and the testator had no 
 such house or place of residence, then in the county where he died, or in 
 any county wherein he had any property at the time of his death; or. 
 
 Fourth. If he died out of this state, his will, or an authenticated copy 
 thereof, may be admitted to probate in any county in this state wherein 
 there is property devised or bequeathed thereby. Code, chap. 77, sec. 22. 
 
EXECUTORS AND ADMINISTRATORS. l6l 
 
 person die intestate, the right to hear and determine the matter 
 of administration belongs to the court which would have juris- 
 diction as to the probate of his will, had he made one.' 
 
 The bond of a personal representative shall be in a penalty 
 equal, at least, to the full value of the personal estate of the de- 
 cedent to be administered; and if the will authorizes the sale of 
 real estate by the executor, the bond shall be in a penalty equal, 
 at least, to the full value both of the personal estate and of such 
 real estate.^ But while the law only requires the bond to be in a 
 suflScient penalty to cover the value of the property to be admin- 
 istered, the practice is to take the bond in a penalty double the 
 estimated value of the estate to come into the hands of the per- 
 sonal representative.' 
 
 The statute does not provide what the conditions of the bond 
 shall be; but inasmuch as the oath is for the faithful discharge of 
 the duties of his office to the best of his skill and judgment,^ it 
 is fair to presume that such should be the condition of the bond 
 of the personal representative. If a joint bond is executed by 
 two or more personal representatives, they stand to each other in 
 the relation of principal and surety; each as principal quoad his 
 own acts, and as surety quoad the acts of his co-representatives.* 
 Where the will directs that an executor shall not give security, 
 it shall not be required of him, unless he be a nonresident of the 
 state, or unless on the application of any person interested, or 
 from the knowledge of the court or clerk admitting the will to 
 probate, it is deemed proper that security ought to be given. No 
 person shall qualify as an executor without giving the security 
 until the expiration of thirty days after the will is admitted to 
 probate.* Under this statute a remainderman may require the 
 executor to give bond, but it will not be done by the court unless 
 it appears that the executor is wasting or attempting or threaten- 
 ing to waste the personal property under his control.^ And 
 
 ' Code, chap. 85, sec. 4. The right to administer upon and distribute the 
 personal property of a decedent is governed by the law of his domicile. 
 White V. Tennant, 31 W. Va. 790; s. c. 8 S. E. Rep. 596. This case dis- 
 cusses at some length and upon authority the question as to what constitutes 
 a domicile. 
 
 ' Code, chap. 85, sec. 6. 3 Atkinson v. Christian, 3 Gratt. 448. 
 
 ♦ Code, chap. 85, sec. 3. 
 
 s Hooper v. Hooper's Ex'rs, 29 W. Va. 276; s. c. i S. E. Rep. 280. 
 
 ' Code, chap. 85, sec. 7. ^ Amias v. Williamson, 17 W. Va. 673. 
 
 II 
 
l62 EQUITY PRINCIPLES. 
 
 though a court of probate may have permitted the executor to 
 quaUfy without bond, yet, if he brings a suit in a court of 
 chancery to reduce into his possession the funds of the testator, 
 the court may, in its discretion, require security to be given, be- 
 fore it will lend its aid to him.' 
 
 Although the appointment of every personal representative 
 made by the clerk of the county court in vacation must be re- 
 ported to the county court by him at its next regular session,' for 
 confirmation, if not objected to, the appointment so made in va- 
 cation confers full power and authority upon the party to dis- 
 charge the duties of his office,' until some one else shall have 
 been chosen in his place. 
 
 The acts of a personal representative appointed by a de facto- 
 government are valid and binding, until another is appointed by 
 the government dejure.^ 
 
 § io8. ^Vho may be appointed an executor or adminis- 
 trator — 
 
 The party named as executor in the will is entitled, in the first 
 instance, to administer upon the estate of the testator, unless he 
 renounces such right;' and this renunciation may be shown on 
 the record, by declarations made in pais, or by circumstances, 
 leading to that conclusion.* 
 
 Our statute provides that if there be no executor appointed by 
 the will, or if all the executors therein named, refuse the execu- 
 torship, or fail, when required to give such bond, which shall 
 amount to such refusal, the court may grant administration, with, 
 the will annexed, to the person who would have been entitled to- 
 administration if there had been no will, he taking such oath and. 
 giving such bond.' But if the court of probate should grant ad- 
 ministration with the will annexed in the absence of the refusal 
 of the executor named in the will to qualify, the appointment 
 could not be questioned collaterally.' 
 
 When a person dies intestate, administration shall be granted. 
 
 ' Bryce v. Stevenson and others, 2 Rand. 438. " Code, chap. 118, se c. 2. 
 3 Raybum v. Raybum, 34 W. Va. 400; s. c. 12 S. E. Rep. 493. 
 
 * Clay V. Robinson, 7 W. Va. 345. 
 
 5 Thompson v. Meek, 7 Leigh, 419, 428. 
 
 ' Thompson v. Meek, supra; Burnley's Adm'r v. Duke, 1 Rand. 108. 
 
 7 Code, chap. 85, sec. 2. 
 
 * Thompson v. Meek, 7 Leigh, 419, 428, 431, 432. 
 
EXBCXJTORS AND ADMINISTRATORS. 1 63 
 
 to the distributees who apply therefor, preferring first the hus- 
 band or wife, and then such of the others entitled to distribution 
 as the court shall see fit. If no distributee apply for administra- 
 tion within thirty days from the death of the intestate, the court 
 may grant administration to one or more of his creditors, 
 or to any other person.' Under this law, when the husband 
 or wife applies for appointment, as the case may be, the court 
 must appoint such applicant; but as to the other distributees, 
 the court must judge as to fitness for the trust, and should 
 exercise a sound discretion in making the appointment in the in- 
 terest of the distributees generally of the estate.' But after the 
 expiration of thirty days a wider discretion is vested in the 
 court, and it may appoint a creditor or a stranger, if no distribu- 
 tee appHes; but, if a suitable distributee then apply, he is entitled 
 to the preference.' In the exercise of this discretion, the court 
 should not appoint a nonresident distributee to the office of ad- 
 ministrator, so long as there is any other distributee competent 
 to act and willing to assume the trust within the jurisdiction of 
 the court.* 
 
 After the lapse of three months, there being no one appointed 
 to administer upon the estate of the decedent in the meantime 
 {except during a contest about the decedent's will, or during the 
 absence or infancy of the executor), the court properly having 
 jurisdiction of the matter shall, on the motion of any person, 
 order the sheriff or other officer of the county to take into his 
 possession the estate of such decedent and administer the same; 
 whereupon such sherifE or other officer without taking any other 
 oath of office or giving any other bond or security than he may 
 have before taken or given, shall be administrator, or adminis- 
 trator de bonis non, of the decedent, with his will annexed, if 
 there be a will, and shall be thenceforward entitled to all the 
 rights and bound to perform all the duties of such administrator. 
 The court may, however, at any time afterwards revoke such 
 order and allow any other person to qualify as executor or ad- 
 ministrator.' When administration is thus cast upon a sheriff, 
 he is to all intents and purposes the administrator of the'decedent, 
 
 ' Code, chap. 85, sec. 4. 
 
 = Bridgeman v. Bridgeman, 30 W. Va. 212; s. c. 3 S. E. Rep. 580. 
 
 3 Bridgeman v. Bridgeman, supra. * Idem. 
 
 5 Code, chap. 85, sec. 10. 
 
1 64 BQUITY PRINCIPLES. 
 
 and is responsible for the due administration of the estate after 
 his office of sheriff expires; ^ and an estate having been cast upon 
 the sheriff, the county court cannot grant administration to a 
 distributee without notice to the sheriff of the application. ** It is 
 not imperative on the county court to grant letters of administra- 
 tion to a distributee after the estate has been committed to the 
 sheriff, but there is a legal discretion in the court." 
 
 In the case of Bridgeman v. Bridgeman, cited in the foot notes, 
 two of the distributees, who were nonresidents, applied in vaca- 
 tion, more than three months after the death of the decedent, to 
 be appointed administrators of the estate. They were appointed 
 and executed the bond. The clerk, under the statute, reported 
 his action to the next term of the county court, at which time a 
 resident distributee appeared, and filed objections to the confirm- 
 ation of the appointment, and then applied himself to be ap- 
 pointed. The court refused to confirm the nonresident appli- 
 cants, and also refused to appoint the resident applicant, and on 
 motion of the latter, committed the estate to the sheriff of the 
 county for administration. On appeal to the circuit court, the 
 order was affirmed. On a writ of error to the supreme court 
 of appeals the action taken was affirmed. When administration 
 is once cast upon the sheriff he is liable for all his acts as though 
 regularly appointed as an administrator, and where his deputy 
 takes charge of the estate, and administers it as such, the high 
 sheriff is responsible for all his acts.* 
 
 If the county court commits an estate to the sheriff for admin- 
 istration before the expiration of three months from the death of 
 the testator, or intestate, the act is not void, but voidable.' 
 
 At common law when a woman married, who, at the time held 
 the trust of a personal representative, her husband became the 
 administrator or executor in her right; * but with us when she 
 marries her husband has no such right, and the marriage operates 
 as an extinguishment of her authority; and the other personal 
 representative, if there be any, may proceed in discharging the 
 
 ' Cocke V. Harrison, 3 Rand, 494; Tunstall v. Withers, 86 Va. 892, 11 S. E. 
 Rep. 565. 
 = Hutcheson v. Priddy, 12 Gratt. 85. 3 Idem. 
 
 * Dabney's Adm'r v. Smith's I<egatee, 5 Leigh, 13; Douglass v. Stump, 
 5 Ivcigh, 392; Mosby V. Mosby, 9 Gratt. 584; Hutcheson v. Priddy, 12 Gratt. 85. 
 
 s Hutcheson v. Priddy, supra. 
 
 * Lindsay v. Lindsay, i Desau. (S. C. ) 150. 
 
EXECUTORS AND ADMINISTRATORS. 1 65 
 
 trust as if she were dead ; and if there be no other, adminis- 
 tration de bonis non (with the will annexed, if there be a will, ) 
 may be granted by the court. ^ Nor shall the executor of an 
 executor have authority as such to administer the estate of the 
 first testator, but on the death of the sole surviving executor of 
 any last will, administration of the estate of the first testator, 
 not already administered, may be granted with the will annexed, 
 to such person as the court shall think fit to appoint.' And it is 
 well settled that an infant cannot be appointed to administer upon 
 the estate of a decedent.' 
 
 § 109. The po\vers of executors and administrators — 
 
 Neither an executor nor administrator has power to act, until 
 he has quaUfied according to law, which is done by giving bond 
 and taking the oath of office, save where the bond is not required 
 by the terms of the will, except that the former may provide for 
 the burial of the testator, pay reasonable funeral expenses and 
 preserve the estate from waste.* 
 
 The personal representative has full control of the personal 
 estate, and may sell the choses in action if the exigencies of the 
 estate require it, or he may exchange a bond due to the estate 
 for the note of a third person, and release the lien on real estate 
 by which such bond is secured, provided the same be done in 
 good faith and without fraud.' He may also submit to arbitra- 
 
 ' Code, chap. 85, sec. 9. ' Code, chap. 85, sec. 8. 
 
 3 Carow V. Mowatt, 2 Edw. (N. Y.) 57; Collins v. Spears, i Miss. (Walk.) 
 310; Schouler's Domestic Relations (zded.), 521. 
 
 •• Code, chap. 85. sec. i. 
 
 5 Stribling V. Splint Coal Co., 31 W. Va. 82; s. c. 5 S. E. Rep. 321. At 
 common law an executor or administrator had the same property in, and, 
 of course, the same powers over the personal effects and estate of his de- 
 cedent that such decedent had at and before his death. Weyer v. Second 
 Nat. Bank, 57 Ind. 198; Whale v. Booth, 4 T. R. Rep. 625. The note to the 
 case of Parker V. Providence & Stonington Steamship Co., reported in 14 
 L. R. A. 414, is a valuable one, as defining the powers of a personal repre- 
 sentative, and we here subjoin it, as follows: "The executor is considered 
 as completely representing the testator." Hudson v. Hudson, i Atk. 460. 
 He has power to compound the debt. DeDiemar v. Van Gagenen, 7 Johns, 
 411; Stuyvesant v. Hall, 2 Barb. Ch. 151, 5, L. ed. 592. To make settlement 
 and compromise. Boyd v. Oglesby, 23 Gratt. 684; Braxton v. Harrison, 11 
 Gratt 54; Moulton v. Holmes, 57 Cal. 342; Bruner's App., 57 Pa. 52; 
 WjTnan's App!, 13 N. H. 18. To release debts. Douglass v. Saterlee, 11 
 Johns, 21; Pierson v. Hooker, 3 Johns, 70; Davenport v. First Cong. Soc, 
 
1 66 EQUITY PRINCIPLES. 
 
 tion any controversy concerning the estate of his decedent, 
 whether the estate claims to be a debtor or a creditor;^ compound 
 or release a debt, but not for less than he ought without making 
 himself liable for a devastavit;'' pay reasonable attorneys' fees 
 for the collection of a debt due the estate;' sell the estate of the 
 decedent when it is necessary to do so for the payment of the 
 debts of the estate, or the situation of the estate requires it.* 
 Under this authority may be included the power of an executor 
 or administrator to sell the real estate of the decedent for the 
 payment of his debts when the personal property is insufficient for 
 that purpose;^ but there is no power at all to sell the real estate 
 of a decedent, to pay his debts unless there is not sufficient per- 
 sonal estate for that purpose, and this must be ascertained and 
 applied upon the debts before the decree for such sale is made.' 
 
 33 wis. 390; Ewing v. Handley, 4 Litt. 346. May release or discharge at 
 pleasure choses in action of his testator. Chase v. Bradley, 26 Me. 538. 
 If done bona fide. Woolfork v. Sullivan, 23 Ala. 548, 58 Am. Dec. 308. 
 And he acts discreetly and in good faith. Meeker v. Vanderveer, 15 N. J. 
 L. 392; Rogers V. Hand, 39 N. J. Eq. 275. In re Scott, i Redf. 236, the court 
 said the authority of an executor or administrator to compound or release a 
 debt has never been questioned; that an executor is not only bound to com- 
 pound or release a debt when the interest of the estate requires it, but he 
 would be guilty of culpable neglect if he should fail to do so and lose the 
 debt. But he cannot compromise a debt due from himself. De Cordova v. 
 De Cordova, 41 L. T. N. S. 45; Cook v. CoUingride. i Jac. 607. 
 
 ' Wamsley, Adm'r, v. Wamsley, 26 W. Va. 45. It is stated in this case 
 that the power to submit to arbitration by the personal representative re- 
 sults, necessarily, from the full dominion which the law gives him over the 
 assets and the full discretion which it vests in him for the settlement and 
 liquidation of all claims due to and from the estate. See Nelson v. Corn- 
 well, II Grat. 724. 
 
 ' Richardson V. Donehoo etal., 16W. Va. 686, 711; Kee v. Kee, 2 Gratt. 116. 
 
 3 Balcer v. Baker, 87 Va. 180; s. c. 12 S. E. Rep. 346. It is held in this case 
 that where the collection of nearly $3,000 due to an estate involves the 
 prosecution of several equity suits, which are hotly contested for a number 
 of years, a contract by the executor of the estate to pay the lawyers conduct- 
 ing such suits a contingent fee of half the amount collected is a reason- 
 able one. 
 
 * Trevelyan's Adm'r V. Lofit et al.,83 Va. 141; s. c. i S. E. Rep. 901; Pinc- 
 kard v. Woods, 8 Gratt. 140; Elliott v. Carter, 9 Gratt. 541,; Watkins v. 
 Stewart, 78 Va. iii; Wayland v. Crank, 79 Va. 602; Knight v. Yarborough, 
 
 4 Rand. 566. 
 
 s Code, chap. 86, sec. 7; Underwood v. Underwood, 22 W. Va. 303; Rein- 
 hardt V. Reinhardt, 21 W. Va. 76; Surber's Heirs v. Kent, Paine & Co., 
 
 5 W. Va. 96. 
 
 « Martin v. Rellehan, 3 W. Va. 480; I<aidley v. Kline, 8 W. Va, 218; Boggs 
 
BXECUTORS AND ADMINISTRATORS. 1 67 
 
 Neither can tHere be any sale of the decedent's land without 
 giving to his heirs a reasonable time within which they may pay 
 the debts, and thus avoid a sale of the lands. ^ 
 
 An executor or administrator may assign a note made to him, 
 as such, for a debt due to his testator, or intestate.' 
 
 An administrator de bonis non has the power to extend the time 
 of payment of a judgment recovered against the former admin- 
 trator, and to discharge the latter' s sureties upon taking other se- 
 curity which bears evidence of being as good.* He may also, if 
 the estate is solvent, erect a tombstone or monument suitable to 
 the station in life and circumstances of the deceased, and reason- 
 able with reference to the value of the estate.* And one of sev- 
 eral executors has the right to receive funds without the con- 
 currence of his co-executors.* 
 
 An executor may withhold a legacy until bond and security be 
 given by the legatee, to refund his due proportion of such debts 
 and demands as may thereafter appear against the estate of the 
 testator.* And no decree can be rendered against an executor 
 for the payment of a legacy, though made upon confession of 
 assets, and without his expressly demanding bond and security 
 from the plaintiff, if such decree do not require such bond and 
 security to be given by the plaintiff before compelling the pay- 
 ment of such legacy.' 
 
 A personal representative may appeal from the judgment or de- 
 cree of a court rendered against him, as such, without giving 
 
 V. McCoy, 15 W. Va. 344; Bieme v. Brown's Adm'r, 10 W. Va. 748. 
 In Hart v. Hart, 31 W. Va. 688, 8 S. E. Rep. 562, it is held to be error for 
 the circuit court to decree a sale of the lands of the intestate for the payment 
 of his debts until the administration accounts of all his personal representa- 
 tives have been settled, and the amounts and priorities of all debts and lia- 
 bilities against his estate have been ascertained and decreed for, and until it 
 has been ascertained what amount, if any, of his personal estate remains in 
 the hands of his personal representatives applicable to the payment of his 
 debts. 
 
 • Hart V. Hart, 31 W. Va. 688, 8 S. E. Rep. 562. 
 
 ' Gayle v. Ennis, r Tex. 184. 
 
 3 West v. Bryson, 99 Mo. 684; s. c. 13 S. W. Rep. 95. 
 
 ■• Griggs V. Veghte, 47 N. J. Eq. 179, 19 Atl. Rep. 867. 
 
 3 Gates V. Whetstone, 8 S. C. 244, and authorities there cited. 
 
 ' Stovall's Ex'r v. Woodson et ux., 2 Munf. 303. 
 
 ? McRae's Ex'r v. Brooks et ux, 6 Munf. 157; Stovall'si Ex'rs v. Woodson et 
 ux, 2 Munf. 303; Rootes v. Webb, 4 Mimf. 77. 
 
1 68 EQUITY PRINCIPI,ES. 
 
 bond;^ or he may obtain an injunction in like manner.' But an 
 administrator cannot purchase at his own sale either directly or 
 through another.' Nor can he transfer a note due the estate in 
 payment of his own debt so as to entitle the assignee to recover 
 thereon, if the assignee had notice of the purpose of such trans- 
 fer.* Neither can he impeach an act of his decedent on the 
 ground of fraud;' nor pay fees for professional services rendered 
 in vindication of the intestate's good name on the trial of a per- 
 son who had killed him for alleged dishonorable conduct;* nor, 
 as a general rule, can the personal representative make any con- 
 tract after the death of his decedent which will bind the estate 
 of such decedent.' All debts thus contracted by a personal rep- 
 resentative, render him individually liable, but not the estate 
 which he represents, though the debt has been contracted for the 
 express benefit of the estate and the estate has actually had the 
 benefit thereof.* An exception to this rule exists where there is 
 a valid debt, an unsettled account for instance against the estate, 
 and the personal representative settles with the party, agrees on a 
 balance and promises to pay it. In such case the promise of the 
 personal representative will bind the estate, because the debt 
 arose in the lifetime of the decedent.' 
 
 ' Linney's Ex'r v. Holliday, 3 Rand, i; Wilson v. Wilson's Adm'r, i H. & 
 M. 16; Shearman V. Christian et al., i Rand. 393; State v. Johnson, 28 W. 
 Va. 56. 
 
 ' State V. Johnson, supra. 
 
 3 Conway v. Green, i Har. & J. (Md.) 151; Edmonds v. Crenshaw, i Mc- 
 Cord (S. C), Ch. 252; Boyd v. Blankman, 29 Cal. 19; Beaubien v. Poupard, 
 Harr. (Mich.) 206; Jenison v. Hapgood, 7 Pick. (Mass.) 1; Baines v. McGee, 
 9 Miss. 208; Winter v. Geroe, 5 N. J. Eq. 388; Stiles v. Burch, 5 Paige, 132; 
 Glass V. Greathouse, 20 Ohio, 503; Chronister v. Bushey, 7 Watts & S. 152; 
 Bailey v. Robinson, i Gratt. 4; Miles v. Wheeler, 43 111. 123; Davies et ux. 
 V. Hughes, 86 Va. 909; s. c. 11 S. E. Rep. 488. 
 
 * Scott V. Searles, 15 Miss. 498; Latham v. Moore, 6 Jones (N. C), Eq. 
 167; Smart v. Waterhouse, 6 Humph. 158; Prosser v. Leatherman, 5 Miss. 
 237- 
 
 5 Peaselee v. Barney, i D. Chip. (Vt.) 331; Estes v. Howland, 15 R. I. 127: 
 s. c. 23 Atl. Rep. 624. 
 
 ' Woodward v. Woodward et al., 36 S. C. 118; s. c. 15 S. E. Rep. 355. 
 
 ' Croswell on Executors and Administrators, 260. See also Thomas v. 
 Moore, 52 Ohio St. 200, 39 N. E. Rep. 803, and the numerous authorities cited 
 in the opinion of the court. 
 
 ' Idem. ' Croswell on Executors and Administrators, 261. 
 
EXBCUTORS AND ADMINISTRATORS. 1 69 
 
 § 110. The powers of an executor under a will — 
 
 Power to sell the real estate of the testator by the executor, 
 aside from the right under the statute for the payment of his 
 debts, must be conferred by the will of the decedent.^ The 
 power thus bestowed upon the executor may be a qzialified one, as 
 for some particular purpose designated by the will — the payment 
 of the testator's debts for instance;^ or it may be a. general one, 
 to be exercised by him without limitation or restriction.' And 
 the right of sale by an executor under the will may be a power 
 coupled with an interest,* or a mere naked power of sale, and 
 nothing more.' In all cases where land is devised with a mere 
 naked power to sell, the freehold of the land descends to the 
 heir, who is entitled to the rents and profits until the sale.* But 
 a power of sale, coupled with an interest in the land, carries 
 with it the right on the part of the executor upon the death of 
 the testator to enter upon the land and take the rents, issues 
 and profits thereof until sale has been made.' 
 
 In the case of Bell's Adm'r v. Humphrey, cited in the foot- 
 notes, it is said, quoting from Mosby's Adm'r v. Mosby's 
 Adm'r,* that many nice and refined distinctions have been taken 
 between forms of devise which have the effect of conferring a 
 naked power, and those which have the effect of conferring a 
 power coupled with an interest. The ordinary forms of devise 
 are: "First. I devise my land to my executors to sell;" or, 
 "Second. I devise my land to be sold by my executors;" or, 
 "Thhd. I devise that my executors shall sell my land;" or, 
 "that my land shall be sold by my executors." The first form 
 of the devise has been conceded by all to have the effect of giv- 
 ing an interest in the land. That is, a devise to the executors 
 themselves for the purpose of sale gives an interest in the land. 
 The other two forms are only appropriate to confer a naked power 
 of sale. 
 
 » Duncan v. Gainey, 108 Ind. 579; s. c. 9 N. E. Rep. 470; Bush v. Ware, 
 15 Pet. (U. S. ) 93, 10 L. ed. 672. 
 
 ' Smith et al. v. Henning, 10 W. Va. 596, 599. 
 
 3 Smith et al. v. Henning, supra; John v. Barnes, 21 W. Va. 498. 
 
 * Bell's Adm'r v. Humphrey, 8 W. Va. i, 5, 15. 
 
 5 Dunn's Ex'rs v. Renick et al., 33 W. Va. 476; s. c. 10 S. E. Rep. 810. 
 
 « Dunn's Ex'rs v. Renick, 33 W. Va. 476, lo S. E. Rep. 810; Mosby v. 
 Mosby, 9 Gratt. 584, 590. 
 
 ? Bell's Adm'r v- Humphrey, 8 W. Va. i, 5. "9 Gratt. 590. 
 
170 EQUITY PRINCIPLES. 
 
 Where the power of sale is qualified, that is, limited to a 
 specific purpose, there can be no sale by the executor for any 
 other purpose than that named in the will.^ Thus, if the devise 
 to the executor with power of sale be for the purpose of paying 
 the debts of the decedent, there can be no sale after the debts 
 have all been paid.' And, therefore, if an executor, under color 
 of such power, sells land to raise money to be applied to pur- 
 poses other than the payment of debts of the testator, and the 
 purchaser had notice thereof, the sale and the purchase thereof 
 and the deed from the executor to the purchaser for such land 
 made in pursuance of said sale, must ordinarily be considered as 
 unauthorized, and as insufficient to divest the devisees of the legal 
 title to the land, or to affect the rights of the testator's creditors 
 therein.' But, ordinarily, if a person in good faith purchases 
 land of an executor, who is authorized by the will to sell land for 
 the payment of debts, he is not bound to inquire if there in fact 
 be such debts, or the purpose for which the land is being sold; 
 and if he be. a bona fide purchaser, and pay for and receive a 
 proper deed for the same without notice or knowledge that the 
 land was in fact sold for a purpose not authorized by the will, 
 then the sale does ordinarily confer a good title on the purchaser 
 or rather passes to him the title of the testator.* Nor is it neces- 
 sary in making a deed to the purchaser to recite tjie authority of 
 the executor to make such deed in the deed conveying the title, 
 although to do so is the better and safer practice.* 
 
 And where executors have the power of sale under a will, the 
 survivor of two or more have such right as fully as all of them 
 had in the first instance.* 
 
 ' Smith et al. v. Henning, 10 W. Va. 598, 599. 
 
 ' Smith et al v. Henning, supra, 596, 638. 
 
 3 Idem. ♦ Idem. s Idem. ^ 
 
 « Bell's Admr. v. Humphrey, 8 W. Va. 1, 5; Ely v. Dix, 118 111. 477; s. c. 
 9 N. E. Rep. 62; Bailey's Case, 15 R. I. 60; s. c. i Atl. Rep. 131;. Brown v. 
 Armistead, 6 Rand. 594. The embarrassment which resulted where a power 
 was conferred upon two or more executors, and ofily a part of them quali- 
 fied, was relieved by the statute of 21 Hen. VIII, c. 4, which expressly em- 
 powered the executors who acted to execute the power. It is said, however, 
 that this statute was simply confirmatory of the common law upon this sub- 
 ject. Vemor v. Coville, 54 Mich. 281; s. c. 20 N. W. Rep. 75; Bonifaut v. 
 Greenfield, I Cro. 80; Co. Litt. 113a. The statute of 21 Hen. VIII, or some 
 enactment of similar tenor, is probably in force in most of the states in the 
 Union. See our statute as to this matter in Code, 1891, chap. 86, sec. i. 
 And a power given to executors by name, if the will does not point to a joint 
 
EXECUTORS AND ADMINISTRATORS. I71 
 
 Ordinarily, where power is vested by the will in executors to 
 sell land, the purchaser does not have to look to the application 
 of the purchase money." 
 
 Where executors have the power of sale of real estate under 
 the will of their decedent, they may enter into an executory con- 
 tract for the sale thereof, and such contract will be specifically 
 enforced in equity if fair, and no laches is shown by the pur- 
 chaser.' 
 
 Where the will directs the executor to sell the real estate of 
 the testator, he may sell and convey the same without obtaining 
 an order of court for that purpose.' But a power of sale under 
 a will does not authorize an exchange of lands. The sale must 
 be for a money consideration.* 
 
 It is the right, as well as the duty, of the executors to admin- 
 ister the estate according to the will, though the duties im- 
 posed by the testator in his will are those usually performed by 
 trustees.' 
 
 In the absence of authority so to do under the will, executors 
 have no power to carry on the trade or business of their testator.* 
 If they continue such business without authority, it is at their 
 own risk and venture.' And the general estate, real and per- 
 sonal, of the testator, not embarked in the business carried on by 
 the executor, cannot be subjected to the liabilities incurred in its 
 prosecution in the absence of clear and explicit authority con- 
 ferred by the will, even though the executors acted in good 
 faith.8 
 
 § iioa. The duties of personal representatives — 
 
 An executor or administrator represents the decedent. The 
 utmost good faith is required of him in all his transactions in re- 
 gard to the estate. He is, moreover, bound to the exercise of 
 
 exercise of it, may be executed by the survivor. Davis v. Christian et al. , 15 
 Gratt. II. And this is so, though a discretion is given to them in the exer- 
 cise of the power conferred. 
 
 • John V. Barnes, 21 W. Va. 498. 
 
 =■ Bostwick V. Beach, 103 N. Y. 414; s. c. 9 N. E. Rep. 41. 
 
 3 Estate of Delaney, 49 Cal. 77; Preusser v. Terry (Ky.), 16 S. W. Rep. 133. 
 
 ■* Taylor v. Galloway, i Ohio, 232. s Webster v. Morris, 66 Wis. 366. 
 
 ' Lucht V. Behrens, 22 Am. Rep. 378, 383; Hooper v. Hooper, 29 W. Va. 
 276; s. c. I S. E. Rep. 280. ' Idem. 
 
 ^ Idem; Burwell v. Mandeville, 2 How. (U. S.) 560; Davis v. Christian et 
 al., 15 Gratt. 11. 
 
172 EQUITY PRINCIPIvBS. 
 
 sucli prudence and caution as a judicious man looking to his own 
 interests would exercise in regard to his own affairs.^ 
 
 Our statute has so clearly and fully pointed out the duties of 
 personal representatives, that there is not much more to do in 
 this connection than to refer to them as therein set forth. These 
 ■^ -ties may be said to begin with the appraisement and inventory 
 of the estate of the decedent.^ 
 
 It is provided that every court by whose order any person is 
 authorized to act as a personal representative, shall, unless when 
 a testator directs his estate not to be appraised, appoint three or 
 more appraisers in every county in which there may be any 
 goods or chattels of the deceased, or (in the case of a will) in 
 which there may be any real estate which the personal repre- 
 sentative is authorized to sell, or of which he is authorized to 
 receive the rents and profits. After taking an oath for the pur- 
 pose, they shall appraise such goods or chattels as may be pro- 
 duced to them, and also the said real estate. The appraisers 
 shall receive each for their attendance one dollar per day; the 
 appraisement shall be signed by them and returned to the clerk 
 of such court and by him be recorded. Every such appraise- 
 ment shall \)& prima facie evidence of the value of the estate em- 
 braced therein, and that it came to the hands of the personal 
 representative.' The personal representative shall also return an 
 inventory of the estate within four months after h.is appointment 
 as such; but he may adopt the appraisement as his inventory by 
 signing the same.* 
 
 • In making out the inventory, the debts coming to the estate of 
 the decedent should be characterized or so put down as that 
 those that are good and collectible should be distinguished from 
 those that are desperate; otherwise all debts in the inventory wUl 
 be treated 2s prima facie good, and in the absence of evidence to 
 the contrary the personal representative will be charged with 
 their amount.* 
 
 The personal representative is to be charged with all the items 
 
 ' Bailey v. Dilworth, 10 Smedes & Marshall (Miss. ), 404, 34 Am. Dec. 760 
 Dundas v. Ctrisman, 25 Neb. 495; s. c. 41 N. W. Rep, 449. 
 
 ' Seeposi, ? 150. 3 Code, chap. 85, sec. 12. 
 
 « Code, chap. 87, sec. 2. In order that the inventory shall of itself be evi 
 dence against the personal representative of the items set forth in it, it i 
 necessary that it be signed by him. Park v. Rucker, 5 Leigh, 149. 
 
 5 Schultz V. Pulver, 11 Wend. 361, 11 Law. ed. 1131, 1132. 
 
ADMINISTRATORS AND EXBCUTORS. 173 
 
 in the appraisement bill, unless lie can show that the property- 
 did not belong to the decedent at the time of his death, or in 
 some other manner account for such items.' And if the appraise- 
 ment bill does not show the true amount which came to his 
 hands, he will, nevertheless, be charged with the real and true 
 amount which went into his hands as the personal representative 
 of the decedent.^ But an appraisement of property in another 
 state, by appraisers appointed in this state, where the will was 
 admitted to probate, will not be prima fade evidence of the 
 amount and value of such property.' 
 
 It is the duty of every personal representative to administer 
 well and truly the whole estate of his decedent; and the appoint- 
 ment of a debtor executor does not extinguish the debt.* 
 
 In Utterback's Adm'r v. Cooper,^ the court holds that, although , 
 at common law the appointment by a creditor of his debtor as his 
 executor operated as against legatees and distributees, with cer- 
 tain exceptions, as a release of the debt, this rule never appHed 
 to a debtor who was appointed administrator of his creditor. 
 
 The goods of the decedent, not lawfully exempt from sale, 
 likely to be impaired in value by keeping, shall, as soon as conve- 
 nient, be sold at public auction upon a reasonable credit (except for 
 small sums), the purchaser giving bond with security therefor.^ 
 
 ' Hooper v. Hooper's Executors and others, 29 W. Va. 276; s. c. i S. E. 
 Rep. 280. 
 
 ' Idem. 3 Idem. 
 
 * Code, chap. 85, sec. 13. Under this section, it is made the duty of the, 
 personal representative to apply the assets of the estate not necessary for the 
 payment of other debts to the exoneration of the real estate of his decedent 
 which may be under mortgage. Dandridge v. Minge, 4 Rand. 397. 
 
 Where a man is executor of a will and appointed guardian for his infant 
 children by the will, and manages the estate of his testator, also that of his 
 children as guardian, does not keep separate accounts, and takes money of 
 his own, as well as money belonging to the estate, and invests it in land and 
 has it conveyed to his infant children, this is a fraud on the residuary lega- 
 tees under the will; and the land is chargeable with the money so diverted 
 from its proper place, although there is no proof that the children had any 
 knowledge of the fraud. Hedrick et al. v. Tuckwiller et al., 20 W. Va. 489. 
 Under this statute, as well as upon general principles, there can be no con- 
 fusion of funds by the representative. He must keep those of his decedent 
 separate and distinct from all others. 
 
 5 28 Graft. 233. 
 
 ' Code, chap. 85, sec. 16. Unless it be necessary for the paj^nent of fune- 
 ral expenses, charges of administration or debts, the personal representatives 
 
174 EQUITY PRINCIPLBS. 
 
 If the perishable goods sold, be not sufficient to pay the funeral 
 expenses, charges of administration, debts and legacies, the per- 
 sonal representative shall sell so much of the other goods and 
 chattels as may be necessary to pay the same, having regard to 
 the privilege of specific legacies.' 
 
 An estate for life shall be treated as personal assets and go to 
 the personal representative of the party entitled to the estate." 
 
 § III. What to be charged as assets to the personal repre- 
 sentative — 
 
 The personal representative ought not to be charged with the 
 debts due to the estate of his decedent at the time when they be- 
 came due, but only at the time when he actually received them; 
 except such debts as are lost by his negligence or improper con- 
 duct.' But the representative must be charged with all the as- 
 sets of the decedent, which he has collected in money, or which 
 he has converted to his own use by exchanging the debt or obliga- 
 tion due the estate for an obligation of a third party, and also with 
 such debts, as have been lost to the estate, and as could have been 
 collected by the use of reasonable diligence.* If a debt has been 
 lost to the estate by the negligence of the personal representative 
 
 shall not sell estate which the will directs not to be sold. Code, chap. 85, 
 sec. 15. Nor shall sale be made of the goods exempt by virtue of the 
 twenty-seventh section of the forty-first chapter of the Code of 1891. 
 
 ' Code, chap. 85, sec. 7. When an administrator sells personal estate of 
 his intestate and takes bonds therefor, this is a conversion of the assets of 
 the estate, and he becomes liable as administrator to acconnt for the amount 
 of the sales, and the bonds become his individual property, but a court of 
 equity will, when it is shown that he has acted with prudence, diligence and 
 caution, relieve him from this responsiblity, if the bonds, without any fault 
 on his part, prove unavailable; but otherwise it will not. Estell & Eakle v. 
 McClintic, 11 W. Va. 399. See also Hoke's Ex'or v. Hoke et al., 12 W. 
 Va. 427. 
 
 If the personal representative sell the shares of stock of his decedent by 
 private contract for ready money, he ought to be charged therefor such sum 
 as they would have sold for upon a reasonable credit, if the situation of the 
 estate would admit of such credit; and if not, such a sum as they would 
 have sold for, in cash, at pubUc auction. Hudson et al. v. Hudson's Adm'rs, 
 5 Munf. 180. 
 
 = Code, chap. 85, sec. 18. 
 
 3 Reitz & Co. v. Bennett et al., 6 W. Va. 417; Anderson et al. v. Piercy et 
 al., 20 W. Va. 282; Evens v. Shroyer, 22 W. Va. 581. 
 
 * Anderson et al. v. Piercy et al., supra. 
 
BXECUTORS AND ADMINISTRATORS. 175 
 
 in not taking steps to collect it, when it could have been col- 
 lected, he should be charged with such debt and interest as of the 
 time when it should have been collected. Such charge is made 
 not because his unreasonable delay in attempting to collect the 
 debt, was a conversion of the assets of the estate, but because his 
 negligence in not attempting to collect the debt, whereby it was 
 lost, is such a tort as should make him responsible for the loss 
 actually sustained by the estate by such negligence.' 
 
 Where the inventory states that certain debts are good, they 
 will be presumed, after a reasonable time, to have been collected; 
 and it devolves upon the personal representative to show that 
 they have not been collected.' 
 
 To make anything ' 'asset's' ' within the meaning of the law, so as 
 to charge the personal representative or his securities, it must 
 have some value and be available for the payment of debts and 
 legacies.' Hence, an insolvent fiduciary cannot impose a liability 
 upon his sureties by the mere giving of a receipt for assets which 
 he does not in fact receive — to do so he must receive substantial 
 assets.' So, too, an insolvent fiduciary cannot transfer his mere 
 indebtedness in one capacity to himself in another capacity, so as 
 to exonerate his sureties in the one capacity and throw the 
 burden upon his sureties in the other. To make the transfer 
 valid in such case it must consist of something more than a naked 
 liability; it must be available assets.* 
 
 ' Idem. ' Idem. 
 
 3 r Am. & Eng. Enc. Law, 824; Gilmer v. Baker, 23 W. Va. 72; Wood- 
 dell V. Bruffy, 25 W. Va. 465. The folio-wing kinds of property have 
 been held to be assets, viz.: the general personal estate, including the 
 chattels real, a debt owing by the executor or administrator; debts gener- 
 ally, when recoverable with due diligence; negotiable notes; legacies and 
 distributive shares; money due on mortgage; emblements; rent accruing 
 previous to the death of the decedent; choses in action founded on contract, 
 debt, covenant, or other duty, and on tort, under stat. 4 Edw. III. c. 7; real 
 «state generally, including reversions and equitable interests, i Am. & 
 Eng. Enc. Law, 825. 
 
 Under our statute allowing a suit to be maintained by or against a personal 
 representative for the taking or carrying away of any goods, or for the waste 
 or destruction of or damage to, any estate of or by his decedent, Code, 
 chap. 85, sec. 20; any damages done to property in the lifetime of the de- 
 cedent, recoverable in an action of trespass or trespass on the ease, may 
 and would be treated as personal assets belonging to the decedent's estate. 
 
 3 Woodell V. Bruffy, 25 W. Va. 465. 
 
 « Gilmer v. Baker, 24 W. Va. 72; Gaw v. Huffman, 12 Gratt. 628. 
 
176 EQUITY PRINCIPIyBS. 
 
 § 112. 'What the la-w regards as a devastavit — 
 
 This word literally means waste and mismanagement; but as 
 applied to fiduciaries it means much more than this. Our statute 
 provides that if any fiduciary shall, by his negligence or im- 
 proper conduct, lose any debt or other money, he shall be charged 
 with the principal of what is so lost and interest thereon in like 
 manner as if he had received such principal. And if any per- 
 sonal representative, guardian, curator, or committee shall pay 
 any debt, the recovery of which could be prevented by reason of 
 illegality of consideration, or lapse of time, or by any other fact 
 within his knowledge, no credit shall be given him therefor.^ 
 Under this law, the payment of any debt or demand by a per- 
 sonal representative, whose collection might be defeated under 
 any principle of law or equity, will be treated as a devastavit? By 
 virtue of this statute, and even independent of it, it is the duty 
 of the personal representative to act promptly and faithfully in 
 the matter of collecting the debts and claims due the estate, and 
 if he fails to do so, and the same are by reason thereof lost to the 
 estate of his decedent, the personal representative will be held 
 personally chargeable with the amount thereof.' 
 
 But where a debt or claim is due the decedent's estate from a 
 perfectly solvent party and is in no way risked by an indulgence, 
 the personal representative has a large discretion as to the mat- 
 ter of bringing suit to collect such a debt or claim, and as the 
 personal representative knows best the needs of the estate for 
 money, he will not be held responsible for not collecting such a 
 debt promptly, provided it remains a perfectly good debt.* Nor 
 is a personal representative bound to sue for a debt due the estate, 
 when it is apparent that the debtor is unable to pay it.^ 
 
 A personal representative is not chargeable beyond the assets, 
 
 ' Code, chap. 87, sec. 5. 
 
 ' Hescht V. Calvert, 32 W. Va. 215; Woodyard, Receiver, v. Polsley et al., 
 14 W. Va. 211; Smith v. Britton, 2 P. & H. 124; Smith v. Pattie, 81 Va. 654; 
 Radford v. Folkes, 85 Va. 820; Carter's Ex'r v. Cutting et ux., 5 Munf. 223. 
 
 sSouthall's Adm'r v. Taylor et al., 14 Gratt. 269; Chapman's Adm'r v. 
 Shepherd's Adm'r, 24 Gratt. 377; Douglass v. Stephenson's Ex'r et al., 75 
 Va. 747; Ivovett V. Thomas's Adm'r, 81 Va. 245; Turpin et al. v. Chesterfield 
 C. & 1. M. Co., 82 Va. 74; Mill's Adm'r et al. v. Talley's Adm'rs, 83 Va. 361; 
 Turner's Adm'r v. Thom, 89 Va. 745; Davis v. Chapman, 83 Va. 67, i S. E.' 
 Rep. 472. * Anderson v. Piercy et al., 20 W. Va. 282. 
 
 5 Lovett v. Thomas, 81 Va. 245. 
 
BXECUTORS AND ADMINISTRATORS. 1 77 
 
 of the decedent by reason of any omission or mistake in plead- 
 ing or false pleading made by him as such representative.^ 
 
 An examination of the authorities will show that this statute 
 was enacted for the purpose of doing away with the conclusive 
 efEect of a judgment against an executor or administrator, in an 
 action wherein a devastavit was suggested, as evidence of assets 
 in his hands unadministered and liable to the judgment; so that 
 in the absence of this provision of law, if judgment went against 
 the personal representative when he had fully administered the 
 estate of the decedent, he could not show that fact and thus be 
 relieved in a court of equity. But this he may now do under 
 this enactment.'^ But this statute has lost much of its practical 
 force under the usual practice now obtaining with us to take a 
 judgment or decree against the personal representative, to be paid 
 out of any goods and chattels still in his hands unadministered.* 
 
 Otu- statute provides further, that ' 'no executor, administrator, 
 trustee, curator or guardian, or his sureties, shall be held liable 
 to any one for loss sustained by any collection, investment, sale 
 of property, real or personal, for any moneys or securities which 
 have become worthless and of no effect while such executor, ad- 
 ministrator, trustee, curator or guardian was acting under the 
 authority of the government and laws of Virginia, at Richmond, 
 between the first day of May, eighteen hundred and sixty-one, 
 and the first day of May, eighteen hundred and sixty-five: Pro- 
 vided, That such executor, administrator, trustee, curator or 
 guardian, in any action at law or suit in equity against him or 
 his sureties, shall by competent evidence make it appear to the 
 satisfaction of the court or jury, if it be a jury case, that he 
 made such sale, collection or investment in good faith and with 
 reasonable discretion, and without fraud or personal gain, except 
 as to his proper commissions: Provided, further. That such col- 
 lection, sale or investment shall have been made at a time and 
 place, within the lines of the so-called Confederate States, and 
 under the laws then and there in force, and which by reason of 
 the military power of the Confederate States government then 
 
 ' Code, chap. 85, sec. 24. See/oi/, \ 152. 
 
 = Miller's Ex'rs v. Rice et. al., i Rand. 438; Pendleton's Adm'r v. Stuart 
 & McCoull, 6 Munf , 377, 
 3 Code, chap. 131, sec. 20. See, also, Peck v. Marling, 22 W. Va. 708. 
 
178 EQUITY PRINCIPtBS. 
 
 prevailing, ■ the people in tlie transaction of their ordinary busi- 
 ness affairs were compelled to conform to. " ^ 
 
 § 113. The investment by the executor of the estate of his 
 testator — 
 
 In determining the validity of a representative's acts in the 
 matter of investing the funds of his decedent, where he has been 
 properly empowered to do so by the will of his testator, the ac- 
 tion of the court is largely determined by the good faith, honesty 
 and reasonable diligence of the executor or personal repre- 
 sentative.* 
 
 In the case of Key v. Hughes' Ex'r, cited in the foot-notes, 
 Snyder, J., quoting from Lord Cottenham, says: "Although a 
 personal representative, acting within the line of his duty and 
 exercising reasonable care and diligence, will not be responsible 
 for the failure or depreciation of the ftmd in which any part of 
 the estate may be invested, or for the insolvency or misconduct 
 of any person who may have possessed it, yet, if that line of 
 duty be not strictly pursued and any part of the property be in- 
 vested by such personal representative in funds, or upon securities 
 not authorized, or be put within the control of persons who ought 
 not to be intrusted with it, and a loss be thereby eventually sus- 
 tained, such personal representative will be liable to make it 
 good, however unexpected the result, however little likely to 
 arise from the course adopted, and however free such conduct 
 may be from any improper motive. ' ' 
 
 In KlHott V. Carter,' Judge Lee, after reviewing numerous 
 cases and authorities, holding that courts act with great tender- 
 ness towards executors who are often called upon to execute 
 onerous and difficult trusts, and are entitled to great indulgence 
 unless neglect be fully proved, says: "Many other cases and 
 opinions of learned judges might be cited tending to the same 
 conclusions; and the fair result of the views which they present 
 and the reasoning they adopt is, that where a trustee has acted 
 
 » Code, chap. 85, sec. 24a, I. 
 
 = Jones' Adm'r v. Jones' Ex'r et al., 86 Va. 845; s. c. 11 S. E. Rep. 426; Key 
 et al. V. Hughes' Ex'rs et al., 32 W. Va. 184; s. c. 9 S. E. Rep. 77; Mills' 
 Adm'r v. Talley's Adm'r, 83 Va. 361; s. c. 5 S. E. Rep. 368; Cooper v. 
 Cooper, 77 Va. 203; Mills v. Mills, 28 Gratt. 442; Ungle v. Cook, 32 Gratt. 
 262; Staples V. Staples, 24 Gratt. 225. 
 
 >> 9 Gratt. 541, 559, 560. 
 
EXECUTORS AND ADMINISTRATORS. 179 
 
 in good faith in the exercise of a fair discretion, and in the same 
 manner in which he probaby would have acted if the subject had 
 been his own property and not held in trust, he ought not to be 
 held responsible for any losses accruing in the management of 
 the trust funds. In Virginia, it is true, for the most part, some 
 compensation is allowed to executors and other trustees for their 
 services, yet I am not aware that any different or more stringent 
 rule has been adopted by which the measure of their responsi- 
 bilities is to be determined than that which seems to prevail in the 
 chancery courts of England and New York; and I very much doubt 
 whether a wise policy should ever require more of a trustee than 
 that he should act in good faith and with the same prudence and 
 discretion that he is accustomed to exercise in the management 
 of his own affairs. A trust is an office of honor, confidence and 
 friendship, and if more than' what I have indicated were required 
 of the trustee, it would cease to be of that character, and would 
 become one of hazard, speculation and profit; and the evils and 
 inconveniences alluded to by the learned judges whose opinions 
 I have before cited, would speedily be realized. As at present 
 advised, therefore, I should not feel disposed to extend the re- 
 sponsibilities of trustees beyond the limits by which they would 
 seem to be bounded in the cases to which I have referred; and 
 where they have intended to discharge their duties fairly, I think 
 they should be treated with tenderness and due caution taken 
 not to hold them liable upon slight or uncertain grounds, lest, by 
 a different policy, men of integrity, and who would be actuated 
 by the proper views, may be deterred from taking upon them- 
 selves an office so necessary in the concerns of life, from fear of 
 anxiety, trouble and risk which it involves. All these cases pro- 
 ceed on the principle that the executor is acting within the 
 scope and limit of his power. Therefore, when the will directs 
 how the funds of the testator shall be invested, these directions 
 become the standard of duty to guide the testator's representa- 
 tive, and the mode of investment prescribed in the will is the ex- 
 tent of the executor's power." 
 
 § 114. Stating the accounts of personal representatives 
 and the charge of interest therein — 
 No authority is needed in support of the principle, that a per- 
 sonal representative will be charged with all assets that have 
 come to his possession and all devastavits by him committed in the 
 
l8o EQUITY PRINCIPLES. 
 
 settiement of his accounts. What these are we have already- 
 
 seen.^ 
 
 An executor should be allowed as credits all proper disburse- 
 ments made by him, including costs and reasonable counsel fees, in 
 all debts due the estate, on which it was his duty as a prudent 
 man, at the time he did sue, to institute suit; nor should such 
 costs and reasonable fees paid by him be refused to be credited to 
 him, because he has so unreasonably delayed the institution of 
 the suit as to render it doubtful whether the debt could then be 
 collected. If he as a prudent man should even then institute 
 suit, because the debt was stiU not desperate, he should be al- 
 lowed such costs and reasonable fees, though the debt should not 
 be made, and though he may, under the rule which we have 
 stated, be properly chargeable with the debt itself as lost by his 
 negligence in not instituting the suit as early as he ought to have 
 done, and when it could have been made. If, however, when the 
 suit was instituted, whether promptly or not, there was no rea- 
 sonable prospect of its being available, he ought not to be cred- 
 ited with expenses incurred in such unavailing efEort to collect a 
 desperate debt.^ Of course, he will be credited with all proper 
 commissions in the settlement of his accounts. 
 
 In the case of Anderson v. Piercy, cited in the foot-notes, 
 Green, J. , says that ' 'it may be regarded as settled law in this 
 state and Virginia, that in settling an executorial account proper 
 an executor ought not to be charged with interest from the day 
 of each receipt of money; for he might not be able to pay it out 
 to a creditor or legatee on the day he receives it, or the payment 
 might be suspended by dispute among the creditors. The ac- 
 counts ought to be closed at the end of each year, till the whole 
 transaction is closed. Such interest is not carried to the account 
 of the succeeding year as is done in an account between debtor 
 and creditor, so as to apply the interest to the payments made 
 during the succeeding year. In executorial accounts both here 
 and in Virginia the payments are applied to the discharge of 
 principal and not of interest, so long as any principal is due; and 
 
 • Ante, II 112 and 113. In the case of Anderson v. Pierce, 20 W. Va. 283, 
 324. 325, 326 and 327, the principles that should govern in the settlement of 
 these accounts are given by Judge Green in careful detail, and the opinion 
 of the court is very valuable for the light it throws upon this subject. 
 
 ' Anderson v. Piercy, supra. 
 
EXECUTORS AND ADMINISTRATORS. l8l 
 
 the interest is brought into the account only at the close of the 
 transaction." ^ 
 
 These rules for the settlement of an executorial account are 
 continued till there has been a reasonable time allowed for the 
 payment of the debts of the estate, when the executorial account 
 proper should be closed, and the balance then due from the exec- 
 utor should be charged against him as a borrower; and until the 
 distribution of the estate from that time the account between him 
 and the residuary legatees should be adjusted as an account between 
 debtor and creditor.^ The account with the legatees is, however, 
 settled on a different basis, that is, on the basis of an account 
 between debtor and creditor; and the account with the legatees 
 settled on this basis should be opened, after a reasonable 
 time has been allowed the executor to pay the debts of the 
 estate, whether they have been actually paid or not by the ex- 
 ecutor.' 
 
 § 115. Payment of legacies by the personal representa- 
 tive — 
 
 As to the time when a legacy is payable, our statute provides 
 that a personal representative shall not be compelled to pay any 
 legacy by the will, or make distribution of the estate of his de- 
 cedent, until after one year from the date of the order conferring 
 authority on the first executor or administrator of such decedent;, 
 and, except where it is otherwise specially provided, he shall not 
 then be compelled to make such payment or distribution until the 
 legatee or distributee shall give him a bond, executed by himself 
 or some other person, with sufficient security, conditioned to re- 
 fund a due proportion of any debts or demands which may after- 
 wards appear against the decedent, and of the costs attending 
 their recovery.* 
 
 If an executor voluntarily pays a legacy, and it afterwards ap- 
 pears that the assets were not sufficient to enable him to pay the 
 same, he cannot maintain a suit to compel the legatee to refund, 
 unless it is necessary for the discharge of debts due from the es- 
 
 ' See Cranberry v. Cranberry, i Wash. 246; Sheppard v. Stark, 3 Munf. 
 29; Burwell v. Anderson, 3 Leigh, 362. 
 
 ' Anderson v. Piercy, supra. See, also, Handley v. Suodgrass, 9 Leigh, 
 430; Carrett v. Carr, 3 Leigh, 416. 
 
 3 Idem. * Code, chap. 87, sec. 29. 
 
l82 EQUITY PRINCIPI.BS. 
 
 tate of tlie decedent.^ This rule, however, which refuses to an 
 executor the right to recpver back from a legatee an excess of 
 advancement beyond his ratable proportion, which he may have 
 paid him, is not inflexible, even when the deficiency in the assets 
 was not created by the subsequent appearance of debts. ^ But 
 after such voluntary payment, under such circumstances, the ex- 
 ecutor will have to make out a very strong case to rebut the al- 
 most conclusive presumption that he had a sufficiency of assets to 
 justify the payment of the legacy which arises from the mere 
 fact that he has paid it without taking a refunding bond.' It 
 will not be sufficient, in such case, in order to rebut such pre- 
 sumption, for the executor to show that he acted bona fde and 
 with honest intentions; but he must show further that he acted 
 in paying the legacy with prudence and caution, under existing 
 circumstances.* But the executor may assent to a specific legacy 
 and waive a refunding bond, so that the legatee may. maintain a 
 common-law action for the legacy, provided the intention to waive 
 such bond be very clear. ^ With us an overpayment of one leg- 
 atee ought not to be regarded as such an admission of assets in 
 the hands of the executor as should bind him to make a like over- 
 payment to other legatees.' 
 
 § 115a. As to the payment of interest on legacies — 
 
 In the discharge of legacies the question most frequently aris- 
 ing is the one touching the payment of interest thereon; and the 
 point of contention here is usually with reference to the time when 
 the legacy begins to draw interest. That is, whether from the 
 death of the testator, or from some subsequent time. The gen- 
 eral rule is that although a legacy vests, where no special inten- 
 tion to the contrary appears, at the death of the testator, it does 
 not begin to carry interest until a year afterwards.'' But this rule 
 
 ' Davis V. Newman, 2 Rob. Rep. 664; Anderson v. Piercy, 20 W. Va. 283, 
 328; Shiner v. Garrison, 30 W. Va. 326; s. c. 4 S. E. Rep. 660. 
 
 ' Hurst V. Morgan et al., 31 .W. Va. 521; s. c. 8 S. E. Rep. 285. 
 
 3 Idem. * Idem. 
 
 s Nelson v. Comwell, 11 Gralt. 724. 
 
 * Anderson v. Piercy et al., 20 W. Va. 284. 
 
 ^ Couch V. Eastham, 29 W. Va. 784; s. c. 3 S. E. Rep. 23; Bradford v. Mc- 
 Conihay et al., 15 W. Va. 732; Shobe v. Carr, 3 Munf. 10; Sullivan v. Win- 
 throp, I Sumn. i; Marsh v. Hague, i Edw. (N. Y.) 174; Hitch v. Davis, 3 
 Md. Ch. 266; Grain v. Barnes, i Id. 151; Hoagland v. Schenck, 16 N. J. I<. 
 370; Derby v. Derby, 4 R. I. 414; Mills v. Mills, 3 Head (Tenn.), 705; Will- 
 
BXECUTORS AND ADMINISTRATORS. 1 83 
 
 is one of convenience only, and must yield to tlie intent of 
 
 iamsou v. Williamson, 6 Paige (N. Y.), 298; Hammond v. Hammond, 2 
 Bland (Md.), 306; King v. Diehl, 9 Serg. & Rawle, 409; Haylard's Estate, 
 
 5 Watts & S. 30; Davison v. Rake, 44 N. J. L. 506; s. c. 16 Atl. Rep. 227; 
 Re Spencer, 16 R. I. 25; s. c. 12 Atl. Rep. 124; Bartlett v. Slater, 53 Conn. 
 102; s. c. 22 Atl. Rep. 678; Chambers v. Chambers, 87 Ky. 144; s. c. 7 S. W. 
 Rep. 620; Sayers v. Crockett, 90 Va. 182; s. c. 17 S. E. Rep. 875; Morgan v. 
 Pope, 7 Coldw. (Tenn.) 541. "The general rule that, where no time for pay- 
 ment is fixed by the will, a pecuniary legacy is payable in one year after the 
 testator's death, was adopted from the ecclesiastical courts, which allowed 
 the executor one year to get in the estate and pay legacies. It was a rule de- 
 signed for the advantage of the executor in the settlement of the estate, and, 
 as said by Mr. Justice Story, 'founded in the convenience of having a fixed 
 period, applicable to cases in general, which if it operated injuriously upon 
 some legatees, was beneficial to others, and it reduces to a certainty what 
 might otherwise be a fluctuating exercise of discretion in the executor or the 
 court.' Sullivan v. Winthrop, i Sum. 1-13. For the sake of general con- 
 venience the court holds the personal estate to be reduced into possession at 
 the expiration of one year after the testator's death, and upon, that ground 
 interest is payable upon general legacies from that time unless some other 
 period for the payment of the legacy is fixed by the will. Actual payment 
 may, in many instances, be impracticable within that time, yet in legal con- 
 templation the right to pay exists, and carries with it the right to interest 
 until actual payment be made. This rule applies as well when the legacies 
 are payable out of money due upon securities that could not by any possi- 
 bility be collected within the year as to cases where the fund out of which it 
 is payable consists of stock or secureties bearing interest or profit from the 
 testator's death, and also to cases where the direction is to pay as soon as 
 possible. Wood v. Penoyre, 13 Ves. 326-334; Pearson v. Pearson, i Schoales 
 
 6 L. 10; Webster v. Hale, 8 Ves. 410; Benson v. Maude, 6 Madd. 15; Lord 
 V. Lord, L. R. 2 Ch. App. 782; Hoagland v. Executors, 16 N. J. Law, 370; 
 Sullivan v. Winthrop, i Sum. i; Kent v. Dunham, io5 Mass. 586. Every 
 testator making a testamentary disposition of his property is presumed to 
 have framed his bequests in view of those general rules that regulate the con- 
 struction of wills, and he has a right to assume that his will will be proved 
 as soon as practicable after his death. He is not supposed to anticipate a 
 litigation over his will that may postpone the probate. An intent on the 
 part of the testator that those persons to whom he has given pecuniary 
 legacies shall have their legacies at the end of one year after his death is de- 
 ducible from the fact that he has specified no time when they shall be paid. 
 The statute, like the common law rule adopted from the ecclesiastical courts, 
 was designed for the convenience of the executor, to afford him a reasonable 
 time to pay the debts, and convert the assets into money, before he was re- 
 quired to pay legacies. At common law interest was allowed to the legatee 
 from one year after the testator's death, without regard to the date of pro- 
 bate, and I agree with the vice-ordinary that the statute in question was not 
 intended to affect the rights of legatees beyond the postponement of the time 
 when suit may be maintained for a legacy." Davison v. Rake, 45 N. J. Eq. 
 767, 18 Atl. Rep. 752, 753-754- 
 
1 84 EQUITY PRINCIPLES. 
 
 the testator as contained in the will, whether express or im- 
 plied.i 
 
 An examination of the authorities will show that where no 
 time is fixed by the will for the payment of a general legacy, and 
 it is not sooner paid, that the exceptions to the rule allowing in- 
 terest at the end of one year from the death of the testator, are, 
 (a) where a legacy is given by a debtor to his creditor in satisfac- 
 tion of his debt; (b) where the legacy is given to the testator's minor 
 child, or to another person to whom the testator stands in the re- 
 lation of a parent, and for whose support he has made no other 
 provision; (f) where the legacy is payable at a future day, though 
 the testator does not stand in loco parentis, if it clearly appears 
 from the will that the legatee shall be maintained out of the prop- 
 erty bequeathed; (^) where a gift is made of the interest of the 
 residue of the testator's estate to one person for life, and the 
 principal is given over to another on the death of the life tenant. 
 In all these cases the legatee is entitled to interest from the death 
 of the testator.^ 
 
 The broad doctrine is announced by Judge Green in the case 
 of Anderson et al. v. Piercy et al.^ that generally a legacy to a 
 child bears interest from the death of the testator.* But this un- 
 conditional statement of the principle, does not seem to be in 
 accord with the well-recognized law obtaining in such cases. It 
 ought to be allowed from the death of the decedent only for 
 the purpose of promoting the equities attending the case and 
 to equalize the bounties of the testator; as where one devisee has 
 
 • Flickwir's Estate, 136 Pa. St. 374; s. c. 20 Atl. Rep. 51S. 
 
 = Davison v. Rake, 44 N. J. L. 506; s. c. 16 Atl. Rep. 227; March v. Tay- 
 lor, 43 N. J. Eq. i; s. c. 10 Atl. Rep. 486; Morgan v. Pope, 7 Coldw. (Tenn.) 
 541; Corl V. Monkhouse, 47 N. J. Eq. 73; s. c. 20 Atl. Rep. 367; Dunn's Execu- 
 tors V. Renick, 33 W. Va. 476; s. c. 10 S. E. Rep. 810; Cooper v. Scott, 62 Pa. 
 St. 139; Hart V. Willis, 77 N. C. 426; Van Blarcom v. Dager, 31 N. J. Eq. 783; 
 13 Am. & Eng. Enc. L. 183, note; Townsend's Appeal, 51 Am. Rep. 523. 
 
 3 20 W. Va. 283, 328. 
 
 * In support of this principle is cited Kite's Ex'r v. Kite's I^egatees, 2 
 Rand. 409. The same doctrine is, in substance, announced by Snyder, 
 J., in Couch v. Eastham, 29 W. Va. 784; s. c. 3 S. E. Rep. 23. An executor, 
 who is the residuary legatee, is bound to pay interest on legacies left by his 
 testator, though no demand has been made for them for fourteen years; 
 though during all that time the legatees have been dead, and there has been 
 no administration on their estate; and though the executor did not know, 
 and had no means of hnowing, whether they were alive or dead, or where 
 they resided in their lifetime. Bourne's Ex'r v. Machan, Adm'r, i Gratt. 292. 
 
EXECUTORS AND ADMINISTRATORS. 1 85 
 
 been given land and the other a personal bequest, and the former 
 is directed to pay the latter such legacy, declaring that it is for 
 the purpose of making the portion of the latter equal to that of 
 the former, as in the case of Eastham v. Couch, cited in the foot- 
 notes. 
 
 But where a time certain is fixed for the payment of the legacy, 
 it does not draw interest until that time arrives.^ 
 
 It is scarcely necessary to state that where a testator directs 
 that no interest be demanded on a legacy, but that the executor 
 shall pay the same as soon as money can be raised by selling cer- 
 tain property, interest wiU not be allowed on such legacy until 
 after a reasonable time for the raising of the money for its pay- 
 ment has elapsed.' A legatee cannot maintain an action for the 
 recovery of a legacy until it is due and payable.* An executor 
 may offset a debt due him from the legatee against the legacy 
 sued for by such legatee.* 
 
 No action at common law will lie against an executor to recover 
 a pecuniary legacy without an express promise to pay.' But such 
 an action may be maintained upon an express promise to pay in 
 consideration of assets or of forbearance.' The action in such a 
 case, however, must be brought against the executor in his in- 
 dividual and not in his representative capacity.' 
 
 No personal representative, as we have already seen,' shall be 
 compelled to pay any legacy or distributive share of the personal 
 estate of a decedent, until a proper refunding bond has been given 
 to him as required by law.' 
 
 A suit in equity, in a proper case, may be brought by a lega- 
 tee or a distributee against a personal representative for his legacy 
 or distributive share of the estate;^" but when the fund out of 
 which it is payable is not definitely ascertained, all the legatees 
 having an interest in the fund must be made parties to the suit.'^ 
 
 ' Garland v. Smiley, 51 N. J. Eq. 198; s. c. 26 Atl. Rep. 164; Chafee v. 
 Maker, 17 R. I. 739; s. c. 24 Atl. Rep. 773; Wheeler v. Ruthven, 20 N. Y. 
 Supreme Ct. 530; Paige's Appeal, 71 Pa. St. 402. 
 
 ' Patton V. Williams, 3 Mvmf. 59. 3 Swope v. Chambers, 2 Gratt. 319. 
 
 « Hooper et al. v. Hooper et al., 30 W. Va. 212; s. c. 9 S. E. Rep. 937; Black- 
 ler V. Boott, 114 Mass. 24. 
 
 5 Kayser v. Disher, 9 Leigh, 357, 360. 
 
 ' Rexroad v. McQuain, 22 W. Va. 32; especially at page 35. 
 '1 Kayser v. Disher, supra. " Ante, ? 115. « Code, chap. 87, sec. 29. 
 
 "• 3 Williams on Executors ( 7th Am. ed. ) 654, and the authorities there cited. 
 
 » Rexroad v. McQuain, supra. 
 
1 86 BQUITY PRINCIPLES. 
 
 § 116. The different kinds of legacies — 
 
 Legacies are either general, demonstrative or specific;"^ and the 
 character or kind of legacy given depends on the intention of the 
 testator, to be derived from the language used in the creation of 
 the bequest.* 
 
 A general legacy is one which does not necessitate the delivery 
 of any particular thing, or paying money out of any particular 
 portion of the estate.' A demonstrative legacy is the bequest of a 
 certain sum of money, with a request or direction that it be paid 
 out of a particular fund. It differs from a specific legacy in this 
 respect; that, if the fund fails for any cause, it is nevertheless 
 entitled to come on the estate as a general legacy. To make it 
 •demonstrative, it must appear to have been the intention of the 
 testator to not restrict the payment of the legacy to the particular 
 fund pointed out for its payment.* 
 
 A demonstrative legacy is subject to abatement, even to the 
 extent of its entire loss, because of failure of assets, if the demands 
 upon the estate for the payment of creditors and specific legacies 
 require it.^ But it will not abate to afford payment of general 
 legacies or any part thereof.' 
 
 A specific legacy is a bequest of a specified part of the testator's 
 personal estate which is distinguished from all others of the same 
 kind, which would at once vest with the assent of the executor.^ 
 One of the essential properties of a specific legacy is, that if the 
 
 ' Harper V. Bibb, 47 Ala. 547; Bradford v. Brinley, 145 Mass. 81; s. c. ij 
 
 ■ N. E. Rep. i; Harrison v. Haskins, 2 P. & H. 388; McFadden v. Hefley, 28 
 
 S. C. 317; s. c. 5 S. E. Rep. 812; Evans v. Hunter, 86 Iowa, 413; s. c. 17 h. 
 
 R. A. 308; Trustees of Unitarian Society v. Tufts, 151 Mass. 46, 7 L. R. 
 
 A. 390. 
 
 » Davis V. Crandall, loi N. Y. 311; s. c. 4 N. E. Rep. 721; Tichenorv. 
 Tichenor, 41 N. J. Eq. 39; s. c. 2 Atl. Rep. 778; Stevens v. Fisher, 144 Mass. 
 114; s. c. 10 N. E. Rep. 803; Alden v. Johnson, 63 Iowa, 127. 
 
 3 Evens V. Hunter, 86 Iowa, 413; s. c. 17 L. R. A. 308; Tifft v. Porter, 8 
 N. Y. 516; Fagan v. Jones, 2 Dev. & B. (N. C.) Eq. 6g; Glass v. Duun, 17 
 Ohio St. 413. It is said in McFadden v. Hefley, 28 S. C. 317, 5 S. E. Rep., 
 at page 814, that originally all devises were specific. The reason given is 
 that until 1838 ( i Vict. ) after-acquired real estate did not pass by will. 
 
 ■• Stevens v. Fisher, 144 Mass. 114; s. c. 10 N. E. Rep. 803; Bradford v. 
 Brinsley, 145 Mass. 81; s. c. 13 N. E. Rep. i; Morris v. Garland, 78 Va. 215. 
 
 5 Dunn v. Renick, 46 W. Va. 349, 22 S. E. Rep. 66. 
 
 ^ Morris v. Garland, supra. 
 
 7 2 Redf. on Wills (3d. ed.) 132; Rice Am. Prob. Law, 369; Morris v. Gar- 
 land, supra. 
 
EXECUTORS AND ADMINISTRATORS. ■ 1 87 
 
 legacy fail by the inadequacy of its subject, the legatee will not 
 be entitled to any recompense or satisfaction out of the general 
 personal estate.^ 
 
 legacies or devises may also be either absolute or conditional:^ 
 An absolute legacy is one given without condition, to vest im- 
 mediately.' A conditional legacy is a bequest whose existence 
 depends upon the happening or not happening of some uncertain 
 event, by which it is either to take place or be defeated.* 
 
 The conditions upon which a legacy depends, may either be 
 precedent or subsequent.® But there are no technical appropriate 
 words which always determine a devise or legacy to be on a con- 
 dition either precedent or subsequent;* any expression disclosing 
 this intention will have that effect.' 
 
 If the language employed in the will shows that the act on 
 which the estate depends must be performed before the estate can 
 vest, the condition is precedent.^ If, on the other hand, the act 
 does not necessarily precede the vesting of the estate, but may 
 accompany or follow it, if this is to be collected from the whole 
 will, the condition is subsequent.' 
 
 The distinction between general and specific legacies is of the 
 greatest importance; for, in the settlement of an estate by the 
 personal representative, articles not specifically bequeathed are 
 first to be sold to pay debts and other legacies; and if there be a 
 deficiency in the assets, the general or pecuniary legatees have 
 first to abate ratably, or contribute in proportion to the value of 
 their individual legacies. The principle on which this is done is 
 the presumed intention of the testator to give a preference to 
 those legatees, by severing particular parts of his personal estate 
 from the rest. But another distinction between them is, that if 
 the particular thing bequeathed happens, during the lifetime of 
 the testator, to become extinguished, or in some way disposed of 
 hy him, which in law is called an ademption, the legacy fails, 
 which cannot be the case with a general legacy; so that, though 
 
 • Rice Am. Prob. Law, 369. 
 
 ' Reuff V. Coleman, 30 W. Va. 171, 3 S. E. Rep. 597; Cassody on Wills, 
 
 U 675-681. 
 
 3 2 Bouv. Law Die, Tit. Legacy, p. 20. * Idem. 
 
 5 2 Jarman on Wills (5th Am. ed.) 505; Reuff v. Coleman, supra. 
 
 « Reuff V. Coleman, supra. ' 2 Jarman on Wills, 505. 
 
 * Reuff V. Coleman, supra. ' 2 Jarman on Wills, 510, note. 
 
1 88 BQTJITY PRINCIPLES. 
 
 specific legacies have, in some respects, the advantage of those 
 that are general, yet in other respects they are distinguished from 
 them to their disadvantage.^ 
 
 An advancement to a child by the testator, made after the exe- 
 cution of his will, is to be taken and treated as a satisfaction or 
 discharge of the legacy given to that child pro toto or pro tanto, 
 according to the amount Cf the advancement and the value or ex- 
 tent of the legacy. ** 
 
 So, too, if a testator gives to one of his children a pecuniary 
 legacy, expressly declaring such sum to be all he intends such 
 legatee to receive of his estate, a general residuary bequest to 
 "all his children," not naming any of them, must be considered 
 as not including that child.' 
 
 § ii6a. W^hen real estate is charged with the payment of 
 legacies — 
 
 The fund primarily available for the payment of legacies is the 
 personal estate of the testator, and unless the legacies are made 
 a charge upon the real estate, resort cannot be had thereto for 
 their payment; so that, if the personal property is not sufficient 
 to pay them, they must fail for want of funds for their dis- 
 charge.* And the intention of the testator to charge his real es- 
 tate with the payment of legacies must appear in his will, either 
 express or implied.* 
 
 In the case of Thomas v. Rector, cited in the foot-notes, 
 Johnson, P., deduces the following principles, as governing in 
 the payment of legacies: 
 
 I . Real estate is not chargeable with the payment of pecuniary 
 
 ' Proffatt's Curiosities and I^aw of Wills, 96, 97; Hood v. Haden, 82 Va. 
 588, 598. In this case, the court in the course of its opinion says: "Specific 
 legacies, however, though they constitute a preferred class and do not abate 
 in common with general legacies, yet are liable to ademption. Indeed, lia- 
 bility to ademption is said to be the most distinctive feature of a specific 
 legacy. Hence, if the identical thing bequeathed is not in existence, or has 
 been disposed of, so that it does not form a part of the testator's estate at the 
 time of his death, the legacy is extinguished and the legatee's rights are 
 gone." 
 
 = Moore v. Hilton et al., 12 Leigh, 2; Jones v. Mason, 5 Rand. 577; Kelly 
 V. Kelly, 6 Rand. 176. See also Code, chap. 77, sec. ii. 
 
 3 Ellison et al. v. Woody et al., 6 Munf. 368. 
 
 * Read et al. v. Cather's Adm'r et al., 18 W. Va. 263. 
 
 s Thomas v. Rector, 23 W. Va. 26. 
 
EXECUTORS AND ADMINISTRATORS. 1 89 
 
 legacies, unless the intention of the testator so to charge it is ex- 
 pressed ifl the will, or such intention appears by implication. 
 
 2. Where it is manifest from the whole will that it was the de- 
 sign of the testator that the legacies should be paid at all events, 
 the impUcation is that the residuary devisee or legatee shall only 
 have the remainder after satisfaction of the previous disposition.^ 
 
 3. Where a testator, after providing for the payment of several 
 pecuniary legacies, without designating out of what estate they 
 should be paid, but declares that they shall be paid by his execu- 
 tor "out of his estate," and in his will does not make any specific 
 devise of his real estate or any part thereof, but blends the real 
 and personal property together as one fund in the residuary 
 clause, he manifests an intention to charge the land with the pay- 
 ment of the legacies, if the personal property should not be suf- 
 ficient to pay the same.^ 
 
 Where a legatee dies in the lifetime of the testator, leaving 
 issue who survive the testator, such issue shall take the estate 
 devised or bequeathed, as the devisee or legatee would have done 
 if he had survived the testator, unless a different disposition 
 thereof be made or required by the will. And the law is the 
 same as to joint legacies.^ 
 
 When a report of the accounts of any personal representative, 
 and of the demands and debts of the decedent's estate, shall 
 have been filed in the office of the proper county court, under 
 chapter eighty-seven of the Code, the court, after two years from 
 the qualification of such personal representative, may, on motion 
 of a legatee or distributee of his decedent, convene the creditors 
 of such decedent, to show cause against the payment of the estate 
 to the legatees or distributees, copies of the order so convening 
 them to be posted and published as notices for the proof of debts. 
 And on or after the day fixed in the order, the court may direct 
 the payment and delivery to the legatees or distributees of the 
 whole or a part of the money or other estate, not before distrib- 
 uted, with or without a refunding bond, as the court may pre- 
 scribe. But such legatee or distributee may be required, by 
 proper suit, to refund such estate within five years from the time 
 it was so paid or delivered to him.' 
 
 ' Bird V. Stout, 40 W. Va. 43, 20 S. E. Rep. 852. 
 
 » Code, chap. 77, sec. 12; Hoke, Ex'r, v. Hoke et al., 12 W. Va. 427, 468. 
 
 3 Code, chap. 88, sec. 31. 
 
igo EQUITY PRINCIPLES. 
 
 If the order contemplated by this statute be not complied 
 with, any person interested may enforce the same by suit ir 
 chancery in the circuit court of the county wherein the order 
 was made, and in such suit such order shall be taken as prima 
 facie correct, and there shall be a decree according to said order, 
 except so far as it may appear upon proper pleadings and proofs 
 to be erroneous. If any fiduciary make any payment in accord- 
 ance with such order of the county court more than three months 
 after such order was made, and before suit shall have been com- 
 menced under the said statute, such payment shall not be dis- 
 turbed, nor shall such fiduciary be in anywise liable with respect 
 thereto.^ In a proper case equity will entertain jurisdiction for 
 the preservation of a legacy before it is payable.' 
 
 § 117. The order of the payment of debts and claims by 
 the personal representative — 
 
 It is by our statute provided, that where the assets of the de- 
 cedent in the hands of his personal representative, after the pay- 
 ment of funeral expenses and charges of administration, are not 
 sufficient for the satisfaction of all demands agajnst him, they 
 shall be applied, 
 
 First. To debts due the United States; 
 
 Secondly. Taxes and levies assessed upon the decedent pre- 
 vious to his death. 
 
 Thirdly. Debts due as personal representative, guardian or 
 committee, where the qualification was in this state, in which 
 debts shall be included a debt for money received by a husband 
 acting as such fiduciary in right of his wife; 
 
 Fourthly. All other demands ratably, except those in the 
 next class; 
 
 Fifthly. Voluntary obligations.' 
 
 No payment shall be made to creditors of any one class, until 
 all those of the preceding class or classes shall be fully paid. 
 But a personal representative who, after twelve months from his 
 qualification, pays a debt of his decedent, shall not thereby be 
 personally liable for any debt or demand against the decedent, ol 
 equal or superior dignity, whether it be of record or not, tm- 
 
 « Code, chap. 88, sec. 32. 
 
 • Rowland et al v. Rowland et al., 11 W. Va. 262, 
 
 3 Code, chap. 85, sec. 25. 
 
EXECUTORS AND ADMINISTRATORS. IQI 
 
 less, before such payment, he shall have notice of such debt 
 or demand.^ 
 
 The order in which the debts of the decedent shall be paid,, 
 where there is not a sufficiency of assets, is here plainly pre- 
 scribed by law, and there is no power in the court or personal 
 representative to change this order. ^ As the rights of the credi- 
 tors exist at the death of the decedent, so must they remain, and 
 no dihgence on the part of a creditor exerted after the death of 
 the decedent can give him any advantage over the rest of the 
 creditors.' Under our statute, the funeral expenses of the de- 
 cedent and cost of administration, are first to be paid before any 
 other debts due from the estate of the decedent. But the rule, 
 as against a creditor, is that no more shall be allowed as funeral 
 expenses than is actually necessary; and in considering what is 
 necessary, regard must be had to the degree and condition in Hfe 
 of the decedent.* 
 
 These statutes directing how the assets of the decedent shall 
 be applied toward the payment of his debts are mandatory, and 
 binding upon the courts,* and in the distribution of the assets 
 of the estate of the deceased there can lawfully be no preference 
 of one creditor over another of the same class. ^ Hence a general 
 creditor cannot by any proceedings carried on by him after the 
 death of the decedent, obtain any advantage or priority over any 
 of the other creditors of the deceased, so as to get more than is 
 applicable to the payment of his own demand, upon a pro rata 
 distribution of the assets, where the assets are insufficient to pay 
 all the claims against the estate.* 
 
 ' Code, chap. 85, sec. 26. 
 
 ' Tompkins v. Weeks, 26 Cal. 50; Boyce v. Escoffie, 2 La. Ann. 872; Bur- 
 riss V. Fisher, 23 Miss. 228; Bosler v. Exchange Bank, 4 Pa. St. 32. 
 
 3 Boyce v. Escoffie, 2 La. Ann. 872; Burriss v. Fisher, 23 Miss. 228; Bosler 
 V. Exchange Bank, 4 Pa. St. 32; Colton v. Fields, 131 HI. 398; s. c. 22 N. 
 E. Rep. 545. 
 
 < Sullivan v. Homer, 41 N. J. Eq. 299, 7 All. Rep. 411. Funeral expenses 
 comprise the outlay or charge incurred for the interment, and the compen- 
 sation of the person or undertaker, who provides what is necessary and 
 attends to the details of the funeral. All otl;er services for the dead which 
 are not acts of necessity are necessarily gratuitous. Hewett v. Bronson, 5 
 Daly (N. Y.)i. 
 
 5 Colton V. Fields. 131 111. 398; s. c. 22 N. E. Rep. 545, 546. 
 
 'Strousev. Lawrence, 160 Pa. St. 421; s. c. 28 Atl. Rep. 930; St. John's 
 Estate, I Tuck. (N. Y.) Surr. 126. 
 
1 92 EQUITY PRINCIPLES. 
 
 Mortgage and other liens upon realty have no priority in th 
 administration of the estate of a decedent, except as to the realt 
 upon which the lien was created.^ But a judgment obtained i 
 the lifetime of the deceased, and upon which execution issued an 
 went into the hands of the sheriff, and was consequently a lie: 
 upon the goods and chattels of the decedent in his lifetime am 
 still subsisting at the time of his death, would have priority ove 
 creditors of the same class because of the lien thus created b; 
 \h.& fieri facias, but not merely by reason of the rendition of th 
 judgment itself.* 
 
 In the payment of debts the personal representative should b 
 careful not to pay a claim in full, unless the assets are sufficien 
 for that purpose, for he will not be allowed to recover it back 
 the loss will have to be borne by himself alone. ^ But, of course 
 an agreement by a creditor of an estate, on being paid in full b; 
 the personal representative, to refund in case the estate shoul( 
 prove to be insolvent, is valid and will be enforced, should the as 
 sets of the estate appear to be insufficient to pay the indebtednes 
 of the decedent in full.* But this principle does not contraven 
 the one allowing the personal representative, who in good faiti 
 has advanced his own money to pay the debts or obligations du 
 by the estate, to reimburse himself out of the assets of the de 
 cedent.' 
 
 It frequently happens that there are mutual demands existinj 
 between a decedent, whose estate is insolvent, and one who is ii 
 debt to such decedent at the time of his death, so "that one de 
 mand may be a just offset against the other. In a case of thi 
 kind, where the claim of the latter is larger than that of th 
 former, it has been made a question whether the debtor can off 
 set his claim against that of the insolvent decedent's estate to th 
 full amount of the debt due to the estate of such decedent, an( 
 take judgment over against the personal representative for th 
 excess. There are some very respectable decisions holding tha 
 this cannot be done, and that the offset can only be allowed t 
 
 ' Piester v. Piester, 22 S. C. 139; Willis v. Sharp, 115 N. Y. 396; s. C. 
 Xi. R. A. 636; Parker v. Grainer, 17 Wend. 559. 
 
 = Trevillian's Executors v. Guerrant's Executors et al., 31 Gratt. 525. 
 
 3 Findlay v. Trigg's Adm'r, 83 Va. 539; s. c. 3 S. E. Rep. 142. 
 
 * Beardsley v. Marsteller, 120 Ind. 319; s. c. 22 N. E. Rep. 315; Wheelt 
 V. Hawkins, 116 Ind. 515; s. c. 19 N. E. Rep. 470. 
 
 s Pendergrass v. Pendergrass et al., 26 S. C. 19; s. c. t S. E. Rep. 45. 
 
EXECUTORS AND ADMINISTRATORS. I93 
 
 the extent of the debt of the party that would be payable upon a 
 pro rata distribution of the estate of the insolvent decedent. ^ But 
 the better and sounder rule is that in an action upon the claim of 
 an insolvent decedent brought by the personal representative, the 
 defendant may set off his demand against the estate to its full 
 amount.^ 
 
 If the daim has been purchased after the death of the insolvent, 
 it can only be offset to the extent of what could be collected 
 thereon according to a pro rata distribution of the assets of the 
 estate.^ And where a court has decreed a sum of money to be 
 paid to the guardian as the estate of the ward, the personal 
 representative cannot set off against the amount so decreed to 
 such guardian a debt to him from such guardian in his individual 
 capacity.* 
 
 But let us here observe that the personal representative should 
 have reasonable ground or evidence that the claim presented to 
 him for payment out of the estate of the decedent is one whose 
 pajmient may be legally enforced against the assets of his de- 
 cedent before he uses any of the property of the deceased for its 
 payment. Under this rule, he can pay no debt barred by the 
 statute of limitations;* or one of which there is no suflScient evi- 
 dence of its validity;* or one which can only be established by the 
 oath of him in whose favor the claim exists;^ or one in favor of 
 a party who, in his lifetime, gave the decedent a receipt in full 
 against all claims and demands, unless, of course, it can be 
 shown that such receipt was given by mistake;' or an account 
 
 » Pate V. Oliver, 104 N. C. 458; s. c. 10 S. E. Rep. 709; Rountree v. Britt, 
 94 N. C. no; Maimey v. Ingram, 78 N. C. 96. 
 
 ' Watennan on Set-Off (2d ed.), 23. ^ Dwight v. Carson, 2 La. Ann. 459. 
 
 ■• Shriver v. Garrison, 30 W. Va. 326; s. c. 4 S. B. Rep. 660. 
 
 s Dunn's Ex'rs v. Renick, 33 W. Va. 476; s. c. 10 [S. E. Rep. 810; Wood- 
 yard V. Polsley, 14 W. Va. 211. If, however, a personal representative pays 
 a debt barred by the statute of limitations, at the instance of the parties in- 
 terested in the estate of the decedent, these parties would be estopped from 
 excepting to such payments in the accounts of the personal representative. 
 Radford v. Folkes, 85 Va. 820; s. c. 8 N. E. Rep. 817. 
 
 * Crotty V. Eagle's Adm'r, 35 W. Va. 143; s. c. 13 S. E. Rep. 59. An admin- 
 istrator who presents a personal demand against his decedent's estate must 
 show that such demand is just and valid, and not barred by the statute of 
 limitations. Cann v. Cann, 40 W. Va. 138; s. c. 20 S. E. Rep. 910. 
 
 ' Dawson v. Hemerlick, 33 W. Va. 675; s. c. 11 S. E. Rep. 31. 
 
 ' Leith's Adm'r v. Carter's Adm'r, 83 Va. 889; s. c. 5 S. E. Rep. 584. 
 
 13 
 
194 EQUITY PRINCIPI<ES. 
 
 against the wife's estate for medical services rendered her, as th 
 same is a debt of the husband,^ unless such services are recog 
 nized by her as constituting a debt of her own and as sue! 
 chargeable to her separate estate;' nor can the administrator pai 
 debts out of their proper order.' 
 
 Where there is a just claim against the estate of the decedent 
 it is not necessary for the personal representative to wait unti 
 the claimant reduces it to judgment before he pays the same. 
 He may also pay a claim acknowledged by the writing of the de 
 cedent or which has been reduced to judgment, and cannot re 
 ject it on the mere conjecture of its payment or upon unsup 
 ported assertions of its payment.' He must also pay for wort 
 performed after the death of the decedent done in pursuance o; 
 a contract made with the deceased in his lifetime.^ 
 
 An administrator de bonis non, who was also administrator o 
 the estate of the former administrator, settled the accounts o 
 the latter, by which it appeared that there was due his estate i 
 large sum of money for advances made to the heirs. He thei 
 transferred or assigned to himself, as administrator, a bond o: 
 the first intestate, in payment of the amount thus found due. I 
 was held that inasmuch as he represented both the debtor anc 
 creditor estates, under the law, he could apply the funds of tb 
 former in payment of a debt due the latter, and could therefore 
 assign to himself a chose in action of the debtor estate for th( 
 same parpose, and account to the debtor estate as so much casl 
 administered.'' 
 
 § 117a. The order in which the property of a testatoi 
 
 should be applied in the payment of his debts- 
 
 The order in which the different kinds of property of a testate: 
 
 available for the payment of his debts shall be applied, is wel 
 
 settled by the adjudications of the courts.* 
 
 ' Moulton V. Smith, 16 R. I. 126; s. c. 12 Atl. Rep. 891. 
 ' Baker v. Baker, 87 Va. 180, s. c. 12 S. E. Rep. 346. 
 3 Nimmo's Ex'r v. Commonwealth, 4 A. & M. 57; Robinson v. Allen, 8, 
 Va. 721; s. c. 8 S. E. Rep. 835, 840. 
 
 < Van Winkle v. Blackford, 33 W. Va. 573; s c. 11 S. E. Rep. 26. 
 5 Armentrout v. Shafer, 89 Va. 566; s. c. 16 S. E. Rep. 726. 
 « Ferguson v. Wills, 88 Va. 136; s. c. 13 S. E. Rep. 392. 
 
 7 Green's Adm'r v. Thompson et al., 84 Va. 376; s. c. 5 S. E. Rep. 507. 
 
 8 Cranmer v. McSwords, 24 W. Va. 594, 599! Elliott v. Carter, 9 Gratt. 548 
 549; Croswell's Executors and Administrators, 515-517. 
 
■EXECUTORS AND ADMINISTRATORS. 1 95 
 
 th&Jirst to be so applied is the personal estate at large not ex- 
 empted by the terms of the will or necessary implication. Next 
 to it, real estate or an interest therein expressly set apart by the 
 will for the payment of debts. ^ Next, real estate descended to 
 the heir.^ After it, property, real or personal, expressly charged 
 with the paymennt of debts, and then subject to such charge, 
 specifically devised or bequeathed.' If these prove inadequate, 
 then general pecuniary legacies,* and after them demonstrative 
 legades.-if any,* and then after these specific legacies, both classes 
 ratably, and in the last resort real estate devised by the will.* 
 
 § 118. The commissions of personal representatives — 
 
 The usual commissions allowed a personal representative is five 
 per cent on his receipts, and a larger commission ought not to be 
 allowed him, except under peculiar circumstances.^ But where 
 he has unusual trouble in collecting debts and is put to great ex- 
 pense in employing clerks and agents, or has had the care and 
 management of real estate and the care and education of the tes- 
 tator's children imposed on him by the will, he may be allowed a 
 greater than the ordinary commission.* 
 
 Any personal representative who shall fail to settle his accounts 
 as required by section six of the Code of West Virginia (1891), 
 chapter eighty-seven, within six months after it has become his 
 duty so to settle, shall have no compensation whatever for his 
 services during the year for which he has failed to make such 
 settlement; and though he do settle his accounts before a com- 
 missioner, yet if he be found chargeable for the year with any 
 money not embraced in his statement of accounts, he shall have 
 no commission on such money unless allowed by the court.' But 
 
 ■ Elliott V. Carter, supra. ' Idem, 3 Idem. * Idem. ^ Ante, ? 116. 
 
 ' Cranmer v. McSwords, supra; Elliott v. Carter, supra. 
 
 ■> Estill & Eakle v. McClintick's Adm'r et al., 11 W. Va. 399, 411; Trip- 
 lett's Ex'rs V. Jameson, 2 Munf. 242; Wharton's Estate, 11 Phil. (Pa.) 39. 
 In estimating the amoimt of the receipts, it is not proper to include a debt 
 due to the estate from the personal representative himself. Farneyhough's 
 Ex'rs V. Dickerson et al., 2 Rob. Rep. 582; Carter's Ex'rs v. Cutting and 
 Wife, 5 Munf. 227. He is not to be allowed any credit for disbursements 
 made by him. Farneyhough's Ex'rs v. Dickerson et al., supra. 
 
 ' Estill & Eakle v. McClintick's Adm'r et al., supra. 
 
 ' Code, chap. 87, sec. 7; Estill & Eakle v. McClintick's Adm'r et al., 11 
 W. Va. 399; Wood's Ex'r V. Gamett, 6 Leigh, 271; Knight v. Watts, 26 W. 
 Va. 175. 
 
196 EQUITY PRINCIPLES. 
 
 this law does not apply to a case in whicli, six months after any- 
 one year, such fiduciary shall have given to the parties entitled 
 to the money received in such year a statement of the said money, 
 and actually settled therefor with them; nor to a case in which, 
 within the said six months after the end of any one year, a fidu- 
 ciary shall have laid a statement of his receipts within such year 
 before a commissioner, who may, in a pending suit, have been 
 ordered to settle his accounts. ' 
 
 If a personal representative fails to make an ex parte settle- 
 ment of his fiduciary accounts once a year, it will be presumed 
 that such failure arose from the failure of such fiduciary to fur- 
 nish a commissioner with a statement of all the money which he 
 had received or had become chargeable with or had disbursed within 
 six months after the end of the year, and unless this presumption 
 is rebutted by satisfactory evidence, such fiduciary must forfeit 
 his commissions and all other compehsation for his services dur- 
 ing the year in which he fails to have made such ex parte settle- 
 ment.^ 
 
 If the personal representative fail to settle his accounts in the 
 time required by law, and is allowed his commissions, neverthe- 
 less, during the time of such failure by a commissioner, the ac- 
 count may be objected to in the appellate court upon such ground, 
 though no exceptions are taken to such account in the court be- 
 low for such cause.' 
 
 Under certain circumstances, double commissions may be al- 
 lowed to a fiduciary;* as where one and the same person performs 
 separate and distinct duties with reference to the same fund at 
 different times, but in separate capacities;* as where executors 
 are authorized to sell real estate of the testator and divide the 
 property, and afterwards invest the proceeds in their names as 
 trustees, and upon the arrival of a certain contingency, or after 
 the lapse of a certain time, the trust estate shall itself be distrib- 
 uted, in accordance with directions contained in the will, this 
 gives them the right to double commissions — that is, commis- 
 sions in the first instance as executors, and in the next instance 
 as trustees;* or where a separation of the two functions of exec- 
 
 ' Code, chap. 87, sec. 7; Fauber's Adm'r v. Gentry's Adm'r, 89 Va. 312; 
 s. c. IS S. E. Rep. 899. 
 ' Knight V. Watts, 26 W. Va. 175. 
 
 3 Estill & Eakle v. McClintick's Adm'r et al., 11 W. Va. 399. 
 « Re Crawford, 113 N. Y. 560, 5 L. R. A. 71, and notes. ^ Idem. ^ Idem. 
 
EXECUTORS AND ADMINISTRATORS. 1 97 
 
 utor and trustee has been intended by the testator, and has in 
 fact been effected, double commissions may be allowed.^ 
 
 § 119. Surcharging and falsifying the accounts of personal 
 representatives — 
 
 After the fiduciary has settled his accounts, and a report of 
 his settlement has been confirmed by the county court, such re- 
 port, to the extent to which it has been so confirmed, shall be 
 taken to be correct, except so far as the same may be surcharged 
 or falsified in a suit brought for the purpose within the proper 
 time.' 
 
 The court will treat the account settled by a personal repre- 
 sentative as prima facie correct in a suit to surcharge or falsify 
 the same.^ 
 
 Though the statute would seem to contemplate a certain limit 
 of time within which a suit to surcharge or falsify the accounts 
 of a personal representative may be brought, yet there is no stat- 
 utory bar to a stiit of this character.* But while it is true, that 
 there is no positive law fixing any prescribed limit wherein a 
 a suit to surcharge or falsify the accounts of a fiduciary 
 may be instituted, equity may refuse relief because of the 
 laches of the plaintiff.^ Where the settlement has been made 
 before a public officer in good faith and approved by the county 
 court, and has stood for many years open to attack, and after 
 such long delay a suit is then brought to attack and overthrow 
 such settlement, equity will not aid the plaintiff, in the absence 
 of a satisfactory explanation of the cause or reason of such de- 
 lay.' But, of course, if the plaintiff accompanies his bill with 
 such a statement of facts as discloses a good ground why no 
 suit has been brought until after a long lapse of time, laches will 
 not bar the relief sought by the bill.' 
 
 A suit may be brought by any person interested in the accounts 
 of a personal representative to surcharge or falsify them. It may 
 
 'Matter of Roosevelt, 5 Redf. 601; Rice's Am. Prob. Law, 415, citing 
 Johnson v. La-wrence, 95 N. Y. 154. 
 ' Code, chap. 87, sec. 22. 
 
 3 Leach et al. v. Buckner, Adm'r, 19 W. Va. 36. 
 < Bruce v. Bickerton et al., 18 W. Va. 342. 
 
 s Bland et al. v. Stewart et al., 35 W. Va. 518; s. c. 14 S. E. Rep. 217. 
 ' Bland et al. v. Stewart et al., supra. 
 1 Hurt V. West's Adm'r, 87 Va. 78; s. c. 12 S. E. Rep. 141. 
 
198 BQUITY PRINCIPLBS. 
 
 be brouglit by tbe personal representative himself to falsify an er- 
 ror committed by the county court in the settlement of his accounts 
 and confirmed on appeal to the circuit court. ^ 
 
 In the leading case of Seabright v. Seabright,^ the court says 
 that the principles which control the mode of proceeding, when the 
 accounts of a personal representative settled ex parte returned 
 and recorded in the proper court are to be surcharged and falsified, 
 are the same as those where a stated account is to be surcharged 
 and falsified, except when there has been fraud in making the 
 settlement, which is the basis of the stated account. The bill in 
 such case must set forth one or more items, whereby the plain- 
 tiff seeks to surcharge or falsify such account or ex parte settle- 
 ment, unless there be errors or mistakes on the face of the ac- 
 count, when such apparent errors need not be specified in the 
 bill.' It is always competent for the plaintiff to show that upon 
 its face the account contains mistakes, as, for example, that, with- 
 out controverting the items themselves, they have been so ar- 
 ranged, or so summed up, as to produce resulls injurious to him.* 
 But there can be no objection to the form of the account, when it 
 shows what has been received by the personal representative, 
 what he has paid out and to whom he has paid the same.* 
 
 § iiga. Executors de son tort — 
 
 Before closing this chapter it is, perhaps, proper to make men- 
 tion of that class of personal representatives known to the law as 
 executors de son tort; that is, executors of their own wrong. This 
 is where one, without direction of the proper court, or of the will 
 
 ' Van winkle v. Blackford, 33 W. Va. 573, s. c. 11 S. E. Rep. 26. 
 
 » 28 W. Va. 412. 
 
 3 In the case of Seabright v. Seabright, 28 W. Va. 412, the practice and 
 mode of procedure in cases to surcharge and falsify the accounts of a per- 
 sonal representative settled ex parte, are given with great clearness and 
 detail. 
 
 ♦ I Bart. Ch. Prac. 279. 
 
 5 Green's Adm'r et al. v. Thompson et al., 84 Va. 376; s. c. 5 S. E. Rep. 
 507. In this case the ground for surcharging and falsifying the settled ac- 
 counts was that no separate distributee accounts were stated; that the amounts 
 paid to the distributees were mixed with the general administration account. 
 But the court held that this was not a sufficient ground to maintain the bill. 
 See also the case of Bradley et al. v. Bradley's Adm'r, 83 Va. 75; s. c. i S. 
 E. Rep. 477. 
 
EXECUTORS AND ADMINISTRATORS. 199 
 
 of a deceased person, intermeddles with his personal estate and 
 performs acts of administration.^ 
 
 Such person will be compelled to account for the disposition 
 and value of the estate;^ but in all acts which are not for his own 
 benefit, and which a lawful executor or administrator might do, 
 he is protected.' He cannot be charged beyond the assets which 
 have come to his hands, and against these he may set off the 
 just debts which he has paid.* 
 
 ' Roggenkamp v. Roggenkamp, 15 C. C. A. (U. S.) 600; Crosw^'s Ex- 
 ecute rs and Administrators, 137. 
 
 ' idem. 3 Roggenkamp v. Roggenkamp, supra. *Idem. 
 
200 EQUITY PRINCIPtBS. 
 
 CHAPTER XVI. 
 
 FIDUCIARIES. 
 
 { 1 20. Who are fiduciaries. 
 
 121. When a committee of an insane person may be appointed. 
 
 122. Bond and qualification of a committee. 
 
 122a. The legal effect of a judicial finding of lunacy. 
 
 123. The powers of the committee of an insane person. 
 
 124. Of the leasing and sale of the lands of infants, married women and 
 
 insane persons. 
 
 125. The application and investment of the proceeds arising from the sale 
 
 of property of persons under disability. 
 
 126. The effect of a sale and its confirmation of property belonging to one 
 
 under disability. 
 
 127. The transfer of the property of a minor or insane person to another 
 
 state or country. 
 
 128. Liability of fiduciary for debts lost or improperly paid. 
 
 129. In the absence of statute a fiduciary cannot resign his trust. 
 
 130. Receivers, the different kinds, and how appointed. 
 
 131. The duties of a general receiver of the circuit court. 
 
 132. The receiver's account and his report to the court. 
 
 133. The powers of the general receiver over stocks and securities. 
 
 134. The liability of the general receiver for funds that may come into 
 
 his hands. 
 
 135. The bond of the general receiver and the giving of new bonds by 
 
 him. 
 
 136. When interest is payable on loans made by the general receiver, 
 
 when to be compounded, and the receiver's compensation. 
 
 137. When the court will appoint a special receiver. 
 
 138. Illustrative instances of the court's refusal to appoint a special re- 
 
 ceiver, and those wherein appointments have been made. 
 
 139. Appointment of a special receiver while case is pending in the court 
 
 of appeals. 
 
 140. How a special receiver may be appointed. 
 
 141. When notice should be given as to the appointment of a receiver. 
 
 142. Rights and powers of a receiver as to bringing suits. 
 
 143. When and where the receiver may be sued. 
 
 144. The general rights, powers and duties of a special receiver. 
 
 145. Who should be appointed a special receiver. 
 
 146. The compensation of the receiver. 
 
 147. The accounts of the receiver. 
 
 148. The settlement of the accounts of special and general receivers. 
 
FIDUCIARIES. 20I 
 
 149. List of the fiduciaries to be kept by the clerks of the circuit and 
 
 county courts. 
 
 150. Inventory of property coming into the hands of all fiduciaries to be 
 
 returned to the clerk of the court appointing the fiduciary. 
 
 151. Return of inventory of sales made by a fiduciary to the clerk. 
 
 152. Liability of fiduciary for debts lost or improperly paid, further con- 
 
 sidered. 
 
 153. The rendition and settlement of accounts of fiduciaries. 
 
 154. The penalty for the failure of a fiduciary to settle his accounts as re- 
 
 quired by law. 
 
 155. Bond of fiduciary to be reported on by a commissioner. 
 
 156. Order annulling and revoking the powers of a fiduciary. 
 
 157. The giving of a new bond by a fiduciary and the effect thereof. 
 
 158. Commissioner's duty in reference thereto, as to accounts before him 
 
 for settlement. 
 
 159. The duty of the court as to the report of a commissioner settling the 
 
 accoimts of a fiduciary. 
 
 160. Surcharging and falsifying the accounts of a fiduciary. 
 
 161. When the court will order the funds in the hands of a fiduciary, 
 
 after the coming in of the report of a commissioner, to be in- 
 vested. 
 
 162. Disposal of securities standing in the name of a fiduciary, upon 
 
 his death, or whose powers have been revoked. 
 
 163. Power and duty of the court after the confirmation of the report of 
 
 the accounts of any fiduciary. 
 
 164. How payment of legacy, or share of distributee, by a personal rep- 
 
 resentative may be enforced by the court. 
 
 165. How order of court as to matters concerning fiduciaries may be 
 
 enforced. 
 
 § 120. Who are fiduciaries — 
 
 In its comprehensive and extended sense the word ' 'fiduciary' ' 
 embraces all those varied relationships possessing the charac- 
 teristics of a trust, ^ under and within the meaning of which may 
 be included executors and administrators, guardians, committees, 
 receivers, trustees, etc. Owing to the importance of the subjects 
 and the practical scope thereof, the principles applicable to ex- 
 ecutors and administrators and to guardians are considered in dis- 
 tinct chapters.^ So, that here we shall treat of committees of 
 insane persons and receivers, deferring those matters pertaining 
 to trustees to the head of exclusive jurisdiction. 
 
 ' Black's Law Die, title "Fiduciary," page 490. 
 'Ante, Ch. XV, and posl, Ch. XIX. 
 
202 EQUITY PRINCIPLES. 
 
 § 121. When a committee of an insane person may be 
 appointed — 
 If a person be found insane by a justice before whom he is 
 examined, or in a court in which he may be charged with crime, 
 the circuit court of the county of his habitation shall appoint a 
 committee for him;' or if a person residing in this state, not so 
 found, be suspected to be insane, the circuit court of the county 
 of his habitation, upon the application of any person interested, 
 and after five day's notice to the party suspected, may examine 
 into the state of his mind, and being satisfied that he is insane 
 may appoint a committee for him; " or if a person residing out of 
 this state, but having property therein, be suspected to be insane, 
 the circuit court of the county wherein the property or greater 
 part of it is, shall, upon like application,' and being satisfied that 
 he is insane, appoint a committee for him.* 
 
 Our constitution confers the power, in general terms, upon the 
 county courts of the state to appoint committees of insane per- 
 sons,^ but there is no act of the legislature prescribing the manner 
 in which this power may be exercised; but our court holds that 
 the statute governing the circuit courts in this matter, applies 
 also to the county courts.* 
 
 Neither the county nor circuit court can appoint a committee 
 for an insane person, without the five days' notice required by the 
 statute.' An appointment made in the absence of such notice is 
 void.' And it would seem that there can be no waiver of this 
 notice, so as to give the court the right to pass on the question 
 of the propriety of appointing such committee as the notice is 
 treated as a jurisdictional matter.' But where there has been an 
 appointment of a committee of a lunatic by a court having juris- 
 diction to make the appointment, the regularity thereof cannot 
 be inquired into by any other court, except upon an appeal.^* 
 
 « Code, chap. 58, sec. 33. ' Code, 1891, chap. 58, sec. 34. 
 
 3 That is upon the application of any person interested. 
 
 * Code, chap. 58, sec. 35 s Const, art., 8, sec. 24. 
 
 ' Lance v. McCoy, 34 W. Va. 416; s. c. 12 S. E. Rep. 728; Evans v. Johnson, 
 39 W. Va. 299; s. c. 19 S. E. Rep. 623; s. c. 23 X,. R. A. 737. 
 
 ' Lance v. McCoy, supra; Evans v. Johnson, supra. 
 
 ^ Lance v. McCoy, supra; Evans v. Johnson, supra; South Penn. Oil Co. 
 V. Mclntyre, 44 W. Va. 296, 28 S. E. Rep. 922. 
 
 ' See the note to the case of Evans v. Johnson, in 23 L. R. A. at pages 
 742, 743- 
 
 ■° Edmunds v. Venable, i P. & H. 121. 
 
FIDTJCIARIBS. 203 
 
 So that persons dealing -witli the committee of a lunatic or other 
 fiduciaries, knowing them to be acting as such, cannot defend 
 themselves from the consequences of such dealings, by impeach- 
 ing the regularity of their appointment.^ 
 
 Our code defines the meaning of the phrase "insane person," 
 and makes it to include every one who is an idiot, lunatic, non 
 compos or deranged.^ But as used in chapter fifty-eight of the 
 code, the word lunatic does not embrace persons who are idiots; 
 and wherever the word lunatic occurs in this chapter, it must be 
 so construed.^ 
 
 It will be perceived from this statute that the right to appoint 
 a committee is not restricted to the fact of insanity or lunacy, 
 but the power may be exercised wherever there is unsoundness 
 of mind or derangement of the intellect. 
 
 In construing a statute similar to that of ours, the Supreme 
 Court of Indiana says: "It may be proper to add that the juris- 
 diction of the court is not confined to cases of insanity, idiocy, or 
 luncuy, strictly so called, but extends to every case of mental 
 unsoundness or imbecility which has reached such a degree, from 
 whatever cause, as renders its subject incapable of conducting 
 the ordinary affairs of Ufe, and leaves him in a condition to be- 
 come a victim of his own folly or the fraud of others. But in 
 no case should the benevolent purpose of the statute be abused 
 by the assumption of jurisdiction over the person or property of 
 another until such a degree of mental unsoundness is clearly 
 made to appear."* 
 
 § 122. Bond and qualification of a committee — 
 
 The court making the appointment of the committee shall take 
 from him a bond in such penalty as it shall deem sufiScient; and 
 in the case of a lunatic sent to the hospital or committed to jail, 
 the clerk of the court shall, within one month thereafter, trans- 
 mit to the auditor a certified copy of such bond, and of any order 
 of the court in relation to such bond, and of any order of the 
 court in relation to such lunatic or his estate; and in one month 
 
 ' Edmunds v. Venable, supra. 
 
 ' Code, 1891, cliap. 13, sec. 17, A. fourteenth. ' Code, chap. 58, sec. 44. 
 
 ■• McCamman v. Cunningham, 108 Ind. 576; s. c. 9 S. E. Rep. 455, citing 
 Lackey v. Lackey, 8 B. Mon. 107; Bus-well, Insanity, 4. See also the cases 
 of Fiscus V. Turner et al., 125 Ind. 46; s. c. 24 N. E. Rep. 662; Hamrick v. 
 State, 134 Ind. 324; s. c. 34 N. E. Rep. 5; Wray v. Wray, 32 Ind. 126. 
 
204 BQtJITY tRINCIPLBS. 
 
 after such lunatic may be admitted into the hospital, the clerk 
 shall send copies of said bond and orders to the board of direc- 
 tors thereof. If any person appointed a committeie of a lunatic 
 refuse the trust, or fail, at or before the term succeeding his 
 appointment, to give bond as aforesaid, the court, on motion of 
 any person interested, may appoint some other person committee, 
 taking from such committee bond, as aforesaid, or shall commit 
 the estate of the lunatic to the sheriff of the county, who shall 
 be committee, and he and his sureties in his official bond, be 
 bound for the faithful performance of the trust. ^ 
 
 Inasmuch as it is not otherwise specially provided, the bond 
 of a committee is made payable to the State of West Virginia, . 
 with one or more sureties, the sufficiency whereof is to be ad- 
 judged by the court.' 
 
 As the condition of the bond of the committee is not specially 
 provided by law, we presume that it would be for a faithful dis- 
 charge of his duties, and for accounting for and paying over, as 
 required by law, all money which may come to his hands by 
 virtue of his office or trust.* 
 
 § 122a. The legal effect of a judicial finding of lunacy- 
 While there are a few decisions to the contrary,* the current of 
 authority and the better reason, is that a judicial finding of 
 lunacy upon an inquisition instituted for that purpose is merely 
 prima facie evidence of such fact, and is therefore not conclusive 
 as to this matter in other proceedings.* And ihs. prima facie pre- 
 sumption thus created, relates only to the period of time covered 
 by the commission or inquisition.^ So that where, on inquest 
 held, the jury found a person, against whom a judgment had 
 
 " Code, chap. 58, sec. 36. = Code, 1891, chap. 10, sec. i. 
 
 3 See code, 1891, chap, ro, sec. 5. 
 
 1 Minn., L. & T. Co. v. Beebe, 40 Minn. 7, 2 L. R. A. 418; Wadsworth v. 
 Shennan, 14 Barb. 169. 
 
 s Hughes V. Jones, 116 N. Y. 67, 5 L. R. A. 632; L'Armoreux v. Crosby, 
 22 Am. Dec. 655; Field v. Lucas, 21 Ga. 447, 68 Am. Dec. 465; Gangrere's 
 Estate, 14 Pa. St. 417, 53 Am. Dec. 554; Fitlow v. Fitlow, 93 Am. Dec. 691; 
 Den V. Clark, 18 Am. Dec. 417; Willworth v. Leonard, 156 Mass. 277, 31 N. 
 E. Rep. 299; Hart v. Deamer, 6 Wend. 497, 10 Law. Ed. 1172; Parker v, 
 Davis, 8 Jones (N. C), L. 460; Mott v. Mott, 49 N. J. Eq. 192; Spurlock v. 
 Noe, 39 L. A. R. 775, note at p. 783. 
 
 ' Field V. Lucas, supra; Shirley v. Taylor, 5 B. Mon. (Ky.) 99. 
 
FlDUCIARi:eS. 205 
 
 been rendered, to be a lunatic, it is no evidence that he was a 
 lunatic at the date of the judgment.^ 
 
 § 123. The powers of the committee of an insane person — 
 The committee of an insane person shall be entitled to the cus- 
 tody and control of his person (when he resides in the state and 
 is not confined in a hospital or jail) , shall take possession of his 
 estate, and may sue and be sued in respect thereto, and for the 
 recovery of debts due to or from the insane person.^ 
 
 A committee of an insane person may sue to set aside a deed 
 or other contract of the insane person, touching his estate, made 
 prior to the time he was appointed committee, upon the ground 
 that such insane person was insane at the time of making such 
 deed or contract of sale.' But "a committee of an insane person 
 should not institute a suit to set aside a contract made by the in- 
 sane person prior to his appointment, on the ground of insanity, 
 unless the person was insane, or there are reasonable grounds to 
 believe he was insane, at the time the contract was made. If 
 the person was sane at the time the contract was made, and the 
 contract is otherwise valid and binding, the court will not set it 
 aside. And though the person was insane when the contract was 
 made, still if it clearly appears that the transaction was in good 
 faith and was beneficial to his interests, the court will not set it 
 aside, in all cases, as a matter of course, at the instance of the 
 committee. So, if the purchase is made in good faith, without 
 any knowledge of the incapacity, and no advantage has been 
 taken of the insane party, a court of equity will not interfere to 
 set aside the contract, if injustice will be done the other side, and 
 the parties cannot be placed in siaiu quo, or in the state in which 
 they were before the purchase."* 
 
 A careful and able writer, speaking as to this subject, says: 
 "A completed contract for the sale of lands, made by an insane 
 vendor, without fraud or notice to the vendee of the grantor's 
 insanity, and for a fair consideration, will not be set aside, either 
 at law or in equity, in favor of the vendor or his representatives, ex- 
 cept the purchase money be restored, and the parties fully reinstated 
 in the condition in which they were prior to the purchase."* 
 
 "Shirley v. Taylor, supra. = Code, 1891, chap. 58, sec. 37. 
 
 3 Hinchman, Adm'r v. Ballard, Adm'r, 7 W. Va. 152, 155. 
 
 ■• Idem, pp. 181, 182. 
 
 5 Buswell, Insanity, 2 413. To the same effect are the following authori- 
 
2o6 EQUITY PRINCIPI<ES. 
 
 The committee may also bring a suit for the purpose of sur- 
 charging and falsifying the accounts of a fiduciary settlement in 
 which the insane party is interested.^ He may also mortgage, 
 lease or sell the real estate of the insane person, upon the condi- 
 tions, in the manner and for the purpose prescribed by law,** but 
 not othewise.' 
 
 In making sale of the land of an insane person, the committee 
 must pursue strictly the requirements of the statute authorizing 
 the same; and if he does not do so the sale will be void, and the 
 purchaser will acquire no title.^ But where the sale is made 
 
 ties: Gribben v. Maxwell, 34 Kan, 8; Behrens v. McKenzie, 23 Iowa, 333; 
 Corbit V. Smith, 7 Iowa, 60; Allen v. Berryhill, 27 Iowa, 534; 2 Pom. Eq. 
 Jur., g 946; Scanlan v. Cobb, 85 111. 296; Young v. Stevens, 48 N. H. 133; 
 Eaton V. Eaton, 37 N. J. L. io8; Freed v. Brown, 55 Ind. 310; Carrv. HoUi- 
 day, 5 Ired. Eq. 167; Odom v. Riddick, 104 N. C. 515; s. c. 7 L. R. A. 118; 
 Boyer v. Berryman, 00 Ind. 000; s. c. 24 N. E. Rep. 248; Ashcraft v. Ar- 
 mond, 44 Iowa, 229. There will be found a very valuable and full note to 
 the case of Riley v. Carter, rg L. R. A. 489-493, as to the principle an- 
 nounced in the text. 
 
 ' Knight v. Watts, 26 W. Va. 175. 
 
 = Code, chap. 58, sees. 38, 39, 40: "If the personal estate of such insane 
 person be insufficient for the discharge of his debts, or if the personal 
 estate, or the residue thereof, after the payment of the debts, and the 
 rents and profits of his real estate, be insufficient for his maintenance 
 and that of his family, if any, the committee of his estate may petition 
 the court by which he was appointed, for authority to mortgage, lease 
 or sell so much of the real estate of such insane person, as may be necessary 
 for the purposes aforesaid, or any of them, setting forth in the petition the 
 particulars and amount of the estate, real and personal, the application 
 which may have been made of any personal estate, and an accoimt of the 
 debts and demands existing against the estate." Sec. 38. 
 
 "On the presenting of such petition, it shall be referred to the commis- 
 sioner in chancery, to inquire into and report upon the matters therein con- 
 tained, whose duty it shall be to make such inquiry, to hear all parties inter- 
 ested in such real estate, and report thereon with all convenient speed." 
 Sec. 39. 
 
 "If, upon the coming in of the report and examination of the matter, it 
 shall appear to the court to be proper, an order shall be entered for the mort- 
 gage, leasing or sale (on such terms and conditions as the court may deem 
 proper), of so much of the said real estate as may be necessary. But no 
 conveyance shall be executed until the sale shall have been confirmed by the 
 court. The proceeds of sale shall be secured and applied under the order of 
 the court." Sec. 40. 
 
 3 South Penn. Oil Co. v. Mclntyre, 44 W. Va. 296, 28 S. E. Rep. 922. 
 
 ♦ Dickel V. Smith, 38 W. Va. 635; s. c. 18 S. E. Rep. 721; Pharis v. Gere, 
 no N. Y. 336; s. c. 18 ;n. E. Rep. 135; Bennett v. Hayden, 145 Pa. St. 586- 
 
FIDUCIARIES. 207 
 
 ■under chapter eighty-three of the code, it is different, and though 
 there are irregularities in the sale, it will not be avoided, as pro- 
 vided in the last section of that chapter.^ 
 
 § 124. Of the leasing and sale of the lands of infants, 
 married women and insane persons — 
 
 Our statute pro\ndes that where an infant, insane person, or 
 married woman (if the propertj' be not her separate estate), is 
 entitled to or bound to renew any lease, any person on his or her 
 behalf, or any person interested, may apply by petition or motion 
 in a summary way, to the circuit court of the county in which 
 the land leased or some part thereof may lie, and by the order of 
 the said court, any person appointed by it may, from time to 
 time, surrender or accept a surrender of such lease, or take or 
 make a new lease of the same premises for such term, and with 
 such provisions as the court shall direct. Such reasonable sums 
 as may be incurred to renew any such lease, shall, with interest 
 thereon, be paid out of the profits of the leasehold premises and 
 be a charge thereon until such payment.' 
 
 It is also further provided that if the guardian of any minor, 
 or the committee of any insane person, think that the interest of 
 the ward or insane person will be promoted by a sale of his estate, 
 or estate in which he is interested with others, infants or adults; 
 or if the trustee of any estate, or any person interested in any 
 estate in trust, whether he be interested with others or not, think 
 the interest of those for whom the estate is held will be pro- 
 moted by a sale thereof, such guardian, committee, trustee or 
 beneficiary, whether the estate of the minor or insane person, or 
 any of the persons interested be absolute or limited, and whether 
 there be or be not limited thereon any other estate, vested or con- 
 tingent, and whether the guardian, committee, or trustee, or the 
 minor, insane person, or any of the persons interested, reside in 
 this state or not, may, for the purpose of obtaining such sale, file 
 a bill in equity in the circuit court of the county in which the 
 estate proposed to be sold or some part thereof may be, stating 
 plainly all the estate, real and personal, belonging to such infant 
 
 s. c. 23 Atl. Rep. 255; Funk v. Renchler, 134 Ind. 68; s. c. 33 N. E. Rep. 
 898; Hamilton v. Traber (Md.), 27 Atl. Rep. 229; Holden v. Scudder, 58 
 JFed. Rep. 932. 
 
 ' Code, chap. 83, sees, i-ii, 18, and especially sec. 18. 
 
 » Code, 1891, chap. 83, sec. i. 
 
2o8 EQUITY PRINCIPLES. 
 
 or insane person or so held in trust, and all the facts calculated 
 to show the propriety of the sale. The bill shall be verified by 
 the oath of the plaintiff; and the infant or insane person, or the 
 beneficiaries in said trust and trustee (when not plaintiffs) , and 
 all others interested, shall be made defendants.' 
 
 Our statute further provides that in addition to the proceed- 
 ing by bill in equity, the guardian of any minor, if he deem that 
 the interest of his ward will be promoted by a sale of his estate, 
 or of any estate in which he with others, infants or adults, is in- 
 terested, whether the estate of the minor, or of any of the other 
 persons interested, be absolute or limited, and whether there be 
 or be not limited thereon any other estate, vested or contingent, 
 may apply by petition, in a summary w^ay, to the circuit court of 
 the county in which the estate proposed to be sold, or some part 
 thereof, may be, describing all the estate, real and personal, be- 
 longing to the minor, and stating plainly all the facts calculated 
 to show the propriety of the sale. The petition shall be verified 
 by the oath of the plaintiff, and the minor and all others inter- 
 ested shall be made defendants, and ten days' notice shall be 
 given to such defendants before such petition can be heard.* 
 
 In the absence of statute, as held by the courts of Virginia as 
 early as 1839, there is no inherent power in a court of equity to 
 sell the lands of an infant, under the pretense that it will be for 
 his benefit.' 
 
 Under the law authorizing the sale of the lands of infants, the 
 power of sale may be exercised by a court of equity of lands de- 
 vised by will, although it may appear from the will that it was 
 the testator's wish and intention, at the time of making the will, 
 that the land should not be sold; provided, the sale thereof is 
 not absolutely or expressly prohibited by the wiU.* 
 
 The language of the statute applying to sales of property of 
 
 » Code, 1891, chap. 83, sec. 2. = Code, 1891, chap. 83, sec. 12. 
 
 3 Pierce v. Trigg, 10 Leigh, 406; Faulkner v. Davis, 18 Gratt. 651; Hoback. 
 V. Miller, 44 W. Va. 635, 29 S. E. Rep. 1014. But from the examination we 
 have made we are of the opinion that by reason of the general jurisdiction 
 of courts of chancery over the estates of infants, that these courts may make 
 sale of their lands independently of statutej^ where it is clearly for the inter- 
 est of the infants to do so. See the well-considered case of Hale v. Hale 
 146 111. 227, 20 L. R. A. 247, 253-255. 
 
 < Talley v. Stark, 6 Gratt. 339, 346, 347. See also Gavin v. Curtin, 171 IlL 
 640, 40 L. R. A. 776. 
 
FIDUCIARIES. 209 
 
 persons under disability, as concerns the character thereof, is 
 "estate," and of course this includes personal as well as real 
 estate. It also embraces an estate in remainder as well as one in 
 possession, and any interest therein, whether vested or con- 
 tingent.' 
 
 The party seeking to make sale of the land of a person under 
 disability (such as that of infancy or insanity) should pursue the 
 course prescribed by law. In addition to his observance of the 
 provisions of section two of chapter eighty-three of the Code, he 
 should not omit the following particulars: (A) The appointment 
 of 2. guardian ad litem to the infant or insane defendant;'' (B) the 
 fiUng of an answer by the infant (if over fourteen years of age) 
 as well as by the guardian ad litem ;^ (C) the taking of the depo- 
 sitions to be read in the suit in the presence of the guardian ad 
 litem, or upon interrogatories agreed upon by such guardian;* 
 (D) a clear showing, independently of any admissions in the an- 
 swers, that the interest of the infant, insane person, or bene- 
 ficiaries in the trust, as the case may be, will be promoted by the 
 sale of the property;^ (E) to see that the court is of opinion that 
 the rights of no person will be violated by a sale of the prop- 
 
 " Cooper V. Hepburn, 15 Gratt. 551; Faulkner v. Davis, 18 Gratt. 651. 
 
 = Code, 1891, chap, 83, sec. 3; Piercy's Heirs v. Piercy, 5 W. Va. 676; Myers 
 V. Myers, 6 W. Va. 369; Hull v. Hull, 26 W. Va. i. In the case of Hull v. 
 Hull, it is decided that if a decree be entered in a suit to sell infants' lands 
 by the court, ordering a sale of such lands, before a guardian ad litem is 
 appointed for them, and before he files an answer for them, and under such 
 decree the lands of infants be sold, and the sale be coniimied by the court, 
 any one of these infants may, within six months aft^r he attains the age of 
 twenty-one years, appear in the suit, whether it be ended or not, and have 
 these decrees reviewed and reversed, and on such a reversal of such decrees 
 for this error, the title of the purchaser of the land falls, and the parties 
 must, by proper proceedings by the court, be put in statu quo. 
 
 3 Code, 1891, chap. 83, sec. 3; Hull v. Hull, supra; Hart v. Hart, 31 W. 
 Va. 688; s. c. 8 S. E. Rep. 562. 
 
 ■• Code, 1891, chap. 83, sec. 4. This section provides that "no deposition 
 shall be read in the suit against any infant or insane party, except by leave 
 of the court, unless it be taken in the presence of Mx. guardian ad litem, or 
 upon interrogatories agreed on by him." This statute is construed in the 
 case of Hurst v. Coe, 30 W. Va. 158, 3 S. E. Rep. 564, and it is there held 
 that it applies only to the sale of the lands of infants or insane persons, and 
 not to the sale of personal property, as the sale of shares of stock in a cor- 
 poration. 
 
 s Code, 1891, chap. 83, sec. 5. 
 
 14 
 
2IO EQUITY PRINCIPI^ES. 
 
 erty;^ (T) upon a decree of sale of the estate, or any part 
 thereof, to take for the purchase-money, when the sale is on 
 credit, ample security, and if the sale be of real estate, retain a 
 lien thereon.^ 
 
 At the sale of the estate, the guardian, or guardian ad litem, 
 or committee or trustee, shall not be a purchaser, either directly 
 or indirectly.' 
 
 A purchase by a fiduciary, while actually holding a fiduciary 
 relation, of the trust property, as we have already seen,* either 
 of himself or of the party to whom he holds such fiduciary rela- 
 tions, is voidable at the option of the party to whom he stands 
 in such relation.® But if it satisfactorily appears that he has 
 been discharged from his fiduciary relationship at the time of the 
 purchase, the sale will not be disturbed on the ground of that re- 
 lationship formerly existing.* 
 
 And where the fiduciary purchases while he is acting in a fidu- 
 ciary relationship toward the property purchased by him, and he 
 sells the same to another, who has notice of the character of the 
 purchase, the party affected may set the sale aside, after the 
 property has passed into the hands of such sub-purchaser.' 
 
 The proceeding to sell in a summary way under section twelve 
 of this same chapter ' of the Code is conducted in about the same 
 manner as is a sale under section two thereof, except that the mode 
 of bringing the matter before the court is by petition upon ten 
 days' notice; and an examination of the statute bearing on this 
 matter indicates that the evidence need not be reduced to deposi- 
 tions, as must be done in a regular chancery proceeding by bill 
 duly filed under section two of this chapter, but that the testimony 
 may be taken before the court ore tenus? 
 
 The law necessarily contemplates a sale only by the guardian. 
 Hence, a sale of the infant's land by any one else is void.'" 
 
 ' Idem. ' Idem. 
 
 3 Code, 1891, chap. 83, sec. 6; Newcomb v. Brooks, 16 W. Va. 32. 
 < Ante, I 54. 
 
 5 Newcomb v. Brooks, supra; Harrison v. Manson, 95 Va. 593, 29 S. E. 
 Rep. 420. 
 ^ Idem. 7 Idem. 
 
 8 Chap. 83. 
 
 9 Code, chap. 83, sees. 12-14. See also, as bearing on this question 
 Parker et al. v. McCoy et al., 10 Gratt. 594. 
 
 " Hoback v. Miller, 44 W. Va. 635, 29 S. E. Rep. 1014. 
 
FIDUCIARIBS. 211 
 
 Thus, no valid sale can be made of such lands on a bill filed by 
 a widow under a mere right of dower. ^ 
 
 § 125. The application and investment of the proceeds 
 arising from the sale of property of persons un- 
 der disability — 
 
 When the sale has been made under section two of this chapter ^ 
 by bill in equity, it is provided that the proceeds of sale shall 
 be invested, under the direction of the court, for the use and 
 benefit of the persons entitled to the estate, and in case of a trust 
 estate, subject to the use, limitations and conditions contained in 
 the writing creating the trust. But, into whosesoever hands the 
 proceeds may be placed, the court shall take ample security, and 
 from time to time require additional security, if necessary, and 
 make any other proper orders for the faithful appUcation of the 
 fund, and for the management and preservation of any property 
 or securities in which the same may be invested, and for the pro- 
 tection of the rights of all persons interested therein, whether 
 such rights be vested or contingent. 
 
 The sale may be made by a special commissioner, who, of 
 course, must give bond as all other commissioners making sale 
 of real estate are required to do, who may then pay the proceeds 
 of the sale over to the guardian, for which he will be responsible 
 on his general bond as such guardian to the extent of the penalty 
 of his said bond.' Or the sale may be made by the guardian, 
 but before making such sale, he shall enter into bond, in open 
 court, with approved security, in a penalty equal to double the 
 value of the estate to be sold, conditioned for the faithful appli- 
 cation of the proceeds of sale.* 
 
 When a guardian applies to the court, under this statute, for 
 an order or decree for the sale of his ward's real estate, it is the 
 duty of the court to carefully see to the investment of the pro- 
 ceeds of such sale for the use and benefit of the persons entitled 
 thereto;" and the bond required by statute' must be given when 
 the sale is to be made by the guardian.'' When this bond has 
 been given and approved by the court, the sureties on the original 
 
 ' Idem. '' Chap. 83 of the Code of 1891. 
 
 3 Reed and Roper v. Hedges, 16 W. Va. 167, 204. 
 
 * Code, 1891, chap. 83, sec. 15. 
 
 5 Kester v. Hill, 42 W. Va. 611, 26 S. E. Rep. 376. 
 
 « Code, chap. 83, sec. 2. ' Kester v. Hill, supra. 
 
212 BQUITY PRINCIPI^ES. 
 
 bond as guardian are not liable for the faithful accounting for the 
 proceeds of such sale; but only the obligors on the bond given to 
 authorize the sale.^ 
 
 As to the application of the proceeds of sale, the same law 
 governs as to sales made by petition as to those made by bill in 
 equity.^ 
 
 Where the sale has been confirmed, when made under this 
 chapter,' the court may direct a conveyance with covenants of 
 special warranty to be made to the purchaser by the guardian or 
 a commissioner. Every such conveyance shall be as effectual in 
 law as if the same had been made by the minor when of law- 
 ful age.* 
 
 § 126. The effect of a sale and its confirination of prop- 
 erty belonging to one under disability — 
 
 Our code provides that no sale of the real estate of an infant 
 or insane person theretofore made and confirmed, under and by 
 the judgment, order or decree of a court of competent jurisdic- 
 tion, nor any conveyance of such real estate made or to be made 
 under any such judgment, order or decree, shall in any manner 
 be affected or invalidated by reason of the bill or petition in the 
 case not having been verified, or by reason of the persons who 
 would be the heirs or distributees of such infant or insane person 
 if he were dead, not having been made parties to the suit or pro- 
 ceeding or by reason of any other error or defect in the proceed- 
 ing or deed, not affecting the very right of the case. And all 
 such sales are by the statute legalized and made valid." 
 
 § 127. The transfer of the property of a minor or insane 
 person to another state or country — 
 Our statute provides that a guardian or committee appointed 
 or qualified in another state or country where any minor or insane 
 person resides may, on petition to the circuit court of any county 
 in this state in which any estate of such minor or insane person 
 may be, have the same paid and delivered to said foreign guard- 
 ian or committee, or his agent or attorney; and such court may 
 authorize the foreign fiduciary to sue and reduce into his posses- 
 
 ' Idem; Findley v. Findley, 42 W. Va. 372, 26 S. E. Rep. 433. 
 ' Code, 1891, chap. 83, sec. 16. 3 Chap. 83 of the Code, 1891. 
 
 * Idem, ? 17. 5 Code, 1891, chap. 83, sec. i8. 
 
FIDUCIARIES. 2 I 3 
 
 sion tlie property of tlie minor or insane person in the same man- 
 ner as if h.e had been appointed in this state. ^ And he may then 
 remove the same into the state or country of his qualification. 
 So, when the proceeds of the sale of real estate of such minor, 
 insane person or cestui que trust are invested, or required to be 
 invested, under the direction of a court, and the party under dis- 
 ability or the cestui que trust resides out of this state, such foreign 
 guardian may, with the consent of the court and the persons re- 
 siding in this state who would be the heirs of such infant, insane 
 person or cestui que trust, if he were dead, remove such proceeds 
 to the state or country in which he was appointed or qualified.* 
 But such trust subject shall not be removed, if in the judgment 
 of the court such removal will defeat or conflict with the pro- 
 \'isions of the deed or instrument creating the trust. But no 
 order of removal shall be made until the publication of the notice 
 as required by section five of chapter eighty-four of the Code has 
 been made; nor tm til it has been shown by authentic documentary 
 evidence that the foreign fiduciary has given bond in the foreign 
 jurisdiction with suificient surety; nor until the court shall be 
 satisfied that the removal of such money or property from this 
 state will not impair the rights or be prejudicial to the interests 
 of the ward or insane person, or of any other person; nor until 
 notice has been given to all persons interested as required by sec- 
 tion seven of chapter eighty-four of the Code.' 
 
 When any personal estate in this state Is vested in a trustee res- 
 ident therein, or who acts by virtue of a deed, will or other in- 
 strument, recorded or probated therein, or when any administra- 
 tor or executor in this state has assets in his hands of a decedent 
 who at the time of his death was domiciled in, another state, and 
 those having the beneficial interest in said estate or assets, are 
 nonresidents of this state, the circuit court of the county in 
 which such trustee, administrator or executor may reside, or in 
 which such estate may be, may, upon petition or bill in equity 
 filed for that purpose, order such trustee or his personal repre- 
 sentative, or such administrator or executor, to pay, transfer and 
 deliver such estate or assets, or any part thereof, to a nonresident 
 trustee, administrator or executor appointed by some court of 
 record in the state in which such beneficiary resides.* But no 
 
 ' Code, 1891, chap. 84, sec. 3. ' Code, chap. 84, sec. 4. 
 
 3 Code, 1891, chap. 84, sees. 4, 5, 7. * Code, 1891, chap. 84, sec. 6. 
 
214 EQUITY PRINCIPLES. 
 
 such order as that mentioned above shall be made until the notice 
 has been given, and the other requirements complied with as pro- 
 vided by section seven of chapter eighty-four of the Code.^ 
 
 Under the statute now being considered, the property, or any 
 part of it, may be sold, and the proceeds thereof paid over to 
 the foreign fiduciary, if it shall appear proper to the court to 
 do so.' 
 
 § 128. Liability of fiduciary for debts lost or improperly 
 paid — 
 
 The same rules and principles, in the main, that apply to per- 
 sonal representatives apply here; and, therefore, we do not deem 
 it practical to extend this section, but refer to the consideration 
 of the subject in a former part of the work.' 
 
 § lag. In the absence of statute a fiduciary cannot resign 
 his trust — 
 
 At common law, a fiduciary who has been duly appointed to 
 the office of his trust, and accepted the same, cannot resign.* 
 But by virtue of our statute it is now otherwise.' However ^ 
 such fiduciary must pursue the method pointed out in the statute^ 
 before he can resign his trust. ^ 
 
 § 130. Receivers, the different kinds, and how appointed — 
 There are two kinds of receivers .known to our courts : a gen- 
 eral receiver who is appointed by the court without reference to 
 any pending cause, and a receiver appointed in a pending cause 
 for the purpose of the particular case.' The former is appointed 
 by the court, and the latter either by the court or the judge 
 thereof in vacation.* 
 
 A receiver is an officer of the court,' and should give bond as 
 required by law; the former with conditions for the faithful dis- 
 
 » Code, 1891, chap. 84, sec. 7. ' Code, chap. 84, sec. 8. 
 
 3 Ante, 5? 110-115. 
 
 ■* Opinion of Brannon, P., in Evans v. Johnson, 39 W. Va. 299, 19 S. E. 
 Rep. 623, and especially at page 625. 
 
 s Code, chap. 82, sec. 7, provides for the resignation of a guardian, and our 
 Code, chap. 118, sec. i, provides for the resignation of all fiduciaries to 
 ■which that chapter relates. 
 
 ' Opinion of Brannon, P., in Evans v. Johnson, supra. 
 
 1 Code, chap. 133, sees. 15, 28. « Idem. 
 
 9 Ruhl V. Ruhl, 24 W. Va. 279. 
 
FIDUCIARIES. 215 
 
 charge of the duties of his office and for accounting for and pay 
 ing over, as required by law, all moneys which may come to his 
 hands by virtue of his office; ' and the latter for the faithful per- 
 formance of his trust and for paying over and accounting for, 
 according to law, all such moneys as may come to his hands by 
 virtue of his appointment.' 
 
 The appointment of a receiver rests in the sound judicial dis- 
 cretion of the court to which the apph cation is made,' and this 
 discretion will not be reviewed by an appellate court, unless it is 
 clearly apparent that such discretion has been abused; * though a 
 receiver be improperly appointed to take charge of lands, thus 
 requiring a change of its possession, the owner of the land so dis- 
 possessed may appeal to the supreme court of appeals, to have 
 such action of the court reviewed, notwithstanding the principled 
 of the case may not have been decided.' But the court must 
 have jurisdiction of the subject-matter to which the appointment 
 of the receiver relates, before the appointment can be legally or 
 properly made. For instance a circuit court of the United States 
 in lyouisiana has no jurisdiction over property in Texas such as 
 confers upon it power to appoint a receiver of a railroad company 
 in Texas which is the property of a corporation created by act of 
 congress.* 
 
 § 131. The duties of a general receiver of the circuit court — 
 The duties of a general receiver are so clearly and explicitly 
 defined by statute that we need do little more than enumerate 
 them as there laid down. It is made his duty, unless otherwise 
 specially ordered, to receive, take charge of, and invest in such 
 stock or other security as the court may specially order and in 
 the maimer required by such order, all moneys heretofore paid 
 into court, or into bank or other place of deposit, and standing 
 subject to the order of the court, and all moneys so paid under 
 any judgment order or decree of the court, and to pay out or dis- 
 pose of the same as the court may order or decree; and to this 
 
 ' Code, chap. 133, sec. 20, and chap. 10, sec. 6. 
 ' Code, chap. 133, sec. 28. 
 
 3 Simmons Hardware Co. v. Waibel, 1 S. D. 488; s. c. 11 L. R. A. 267. 
 * Simmons Hardware Co. v. Waibel, supra; Texas & P. R. Co. v. Gay, 25 
 L. R. A. 52. 
 
 5 Button V. Lockridge, 27 W. Va. 428. 
 
 « Texas & Pacific R. Co. v. Gay, 86 Tex. 571; s. c. 25 I<. R. A. 52. 
 
2i6 EQUITY PRINCIPLES. 
 
 end lie may check for, receive and give acquittances for all such 
 moneys.' He shall collect the dividends and interest on all certi- 
 ficates of stock or other security in which investments have been 
 or may be made under the orders or decrees of the court, or un- 
 der the provisions of chapter one hundred and thirty-three of 
 the code, when and as often as the same may become due and 
 payable thereon, and shall invest or dispose of the same as the 
 court shall order or decree.' 
 
 While by the terms of the statute here given the receiver can- 
 not invest or loan the funds coming into his hands without an 
 order of court so directing him to do, still it would be his 
 duty to obtain such order even in the absence of such a statute, 
 and he should also advise the court as to the fund on hand, and 
 ask for directions as to its keeping and disposition.' 
 
 § 132. The receiver's account and his report to the court — 
 
 It is made the duty of the general receiver to keep an accurate 
 and particular account of all moneys received, invested and paid 
 out by him, showing the respective amounts to the credit of each 
 case in the court, and designating in the items, the judgments, 
 orders or decrees of the court under which the respective sums 
 have been received, invested or paid out; and on the first day of 
 each regular term of the circuit court he shall report to such 
 court a general statement showing the balances to the credit of 
 each case in the court in which money has been received by him, 
 the manner in which it is invested, the amounts received, in- 
 vested, or paid out since the preceding term of the court, 
 and the whole amount then invested and subject to the future 
 order of the court; and he shall, at any time when required by 
 the court to do so, furnish a statement of the amount subject to 
 the order of the court in any case pending therein. If he fail 
 to keep this account, or to make out and return the said state- 
 ment to the court as above required, he shall be subject to a fine 
 of not less than one hundred nor more than one thousand dollars, 
 to be imposed by the court at its discretion; and the condition 
 of his official bond shall be taken to embrace the liability of 
 himself and his sureties for any such fine.' 
 
 ' Code, chap. 133, sec. 15. = Code, chap. 133, sec. 17. 
 
 3 Beach, Rec. 799. See post, ? 144. * Code, chap. 133, section 18. 
 
 5 Code, chap. 133, sec. 22. 
 
FIDUCIARIES. 217 
 
 § 133. The powers of the general receiver over stocks and 
 securities — 
 
 The certificate of stock or other securities in which, under the 
 special orders of the court, such instruments may be made, shall 
 be taken in the name of the general receiver, as such, and be 
 kept by him, unless otherwise specially ordered; and he shall 
 have the power to sell, transfer or collect the same, when ordered 
 by the court to do so, but not otherwise; and in case of his death, 
 resignation or removal, his successor, or any person specially 
 appointed by the court for that purpose, shall have like power.' 
 
 § 134. The liability of the general receiver for funds that 
 may come into his hands — 
 The general receiver shall be liable for all moneys which may 
 come into his hands as general receiver; and if at any time he 
 shall fail to invest any sum of money as legally required under 
 chapter one hundred and thirty- three of the Code, for the space 
 of sixty days after the same shall be, or ought to have been 
 received by him, or shall fail to pay out any sum of money, 
 when required by the court to pay the same, for the space of 
 sixty days after it shall come into his hands for the purpose 
 of such payment, he shall be charged with interest thereon from 
 the day when such money was or ought to have been received 
 by him, until such investment or payment is made unless, upon 
 good cause shown to the court, it shall order otherwise.* 
 
 § X35. The bond of the general receiver and the giving of 
 ne^v bonds by him — 
 
 At the time of his appointment, the general receiver, and at 
 least once in every two years thereafter, shall give bond with 
 good security, to be approved by the court, in such penalty as the 
 court shall prescribe, but sufficient, at least, to cover the probable 
 amount which may come to his hands as such receiver during the 
 ensuing two years, with the condition mentioned in a former sec- 
 tion^ of this work.* 
 
 The court shall examine the reports required by the four- 
 teenth and twenty-fourth sections of chapter one hundred and 
 thirty-three of the Code, when the same are made to the court; 
 
 ' Idem, sec. 16. ' Code, chap. 133, sec. 19. ^ See Ante, § 130. 
 « Code, chap. 133, sec. 20. 
 
2l8 EQUITY PRINCIPLES. 
 
 and if satisfied of the correctness thereof, shall order them, 
 by indorsement thereon, to be recorded; and if it appear from 
 the report of the commissioner that any bond of a receiver, 
 or any bond or other security given by any person to whom 
 money has been loaned under its order, is insufficient, the court 
 shall order additional security to be given, or another bond to 
 be executed before it, in such penalty as may seem right, and 
 with sufficient securities. But the execution of such new bond 
 shall not disharge the sureties in any prior bond from their lia- 
 bility for acts of the principal obligor done previously to the ex- 
 ecution of such new bond.^ 
 
 § 136. When interest is payable on loans made by the 
 general receiver, when to be compounded, and the 
 receiver's compensation — 
 
 The interest on all loans made to individuals under an order 
 of court, shall become due and payable on the first day of Jan- 
 uary in each year, until the principal is paid; and unless the 
 interest be paid at the time it becomes due and payable, com- 
 pound interest shall be charged thereon to the borrower from such 
 time until payment thereof is made.* 
 
 The general receiver shall receive as compensation for his serv- 
 ices such per centum of the amount received and invested or 
 paid out by him in such case as the court may direct, for receiv- 
 ing, investing or pajdng out the same.' 
 
 § 137. When the court will appoint a special receiver — 
 Our code provides that "a court of equity may in a proper 
 case pending therein, in which the property of a corporation, 
 firm or person is involved, and there is danger of the loss or 
 misappropriation of the same or a material part thereof, appoint 
 a special receiver of such property or of the rents, issues and 
 profits thereof, or both. ' ' * And where a corporation or pretended 
 corporation has been dissolved by the judgment of a circuit court 
 under chapter one hundred and nine of the Code, the court may 
 appoint a receiver of the property of such corporation or pre- 
 tended corporation, as provided in section one hundred and twenty- 
 eight of chapter one hundred and thirty-three of the Code of 
 this state. ^ 
 
 The prime object of the appointment of a receiver in a pending 
 
 'Idem, sec. 25. 'Idem, sec. 23. ^/dem, sec. 21. 
 
 */dem, sec. 28. sCode. chap. 109, sec. 13. 
 
FIDUCIARIBS. ■ 219 
 
 cause, is the protection and preservation of the subject in litiga- 
 tion from spoliation, waste or deterioration,' and for the advance- 
 ment of justice;* and although the power to appoint receivers in 
 pending causes is conferred by statute, this power is inherent in 
 a court of equity independent thereof,' and is one of the most 
 ancient subjects of its jurisdiction;* and its exercise depends 
 upon the sound discretion of the court.' But the court will not 
 appoint a receiver in any case, when the party can obtain the re- 
 Uef he seeks at the hands of a court of law.* 
 
 The language of the statute is that it may be done where 
 "there is danger of the loss or misappropriation of the property, 
 or a material part thereof." This language of the statute gives 
 the court a very broad discretion in the matter of appointing a 
 receiver in any pending case, and an examination of the authori- 
 ties will show that the courts do not hesitate to use the power 
 thus conferred upon them to seize and hold the property involved 
 in the Utigation, whenever the ends of justice require it.'' But it is 
 important to keep in mind that a special receiver can only be ap- 
 pointed in a pending case.' 
 
 ' 20 Am. & Eng. Enc. Law, 11, 12, and notes. 
 
 ' Barbour v. National Exchange Bank, 45 Ohio St. 143 12 N. E. Rep. 5, 
 8; Kerr, Rec. i. 
 
 3 Folsom V. Evans, 5 Minn. 481; Murray v. Murray, 115 Cal. 256, 37 I,. R. 
 A. 626, 629; 2 Beach, Mod. Eq. Jur., ? 931. 
 
 « Bispham, Eq. Princp., sec. 576, p. 685. 
 
 5 Milwaukee, etc., R. R. Co. v. Soutter, 2 Wall. 510; Verplanck v. Caiues, 
 1 John. Ch. (N. Y.) 57, i N. Y. Ch. Rep. (L. ed.) 58; Chicago, etc., Co. v. 
 United States Co., 57 Pa. St. 83; Lenox v. Notrebe, Hempst. 225; Simons 
 Hardware Co. v. Waibel, i S. D. 488, 11 L. R. A. 287. 
 
 * Bispham, Princp. Eq. (8th ed.) 685; 2 Beach, Mod. Eq. Jur., § 931. 
 
 ' McMahon v. McCleman, 10 W. Va. 419; Grantham v. Lucas, 15 W. Va. 
 425; McCandless v. Warner, 26 W. Va. 754; Hutton v. Lockridge, 27 W. Va. 
 576; Ogden V. Chalfaut, 32 W. Va. 559; s. c. 9 S. E. Rep. 879; Dunlop v. 
 Hedges, 35 W. Va. 287; s. c. 13 S. E. Rep. 656. 
 
 ' Code, chap. 133, sec. 28; Harwell v. Potts, 80 Ala. 70; Pressley v. Har- 
 rison, 102 Ind. 41; s. c. I N. E. Rep. 188, 190, 191; Smith on Receivers, 35, 
 36, and notes. 
 
 By the ancient English practice, a receiver was not appointed until the 
 coming in of the answer; but it is now settled, both in this country and in 
 England, that the appointment may be made before answer, provided a 
 special necessity therefor is shown to exist. High, Rec. 105, 106. 
 
 The action is pending when the process has been issued, or the defendant 
 has waived the issuance thereof, and appeared to the action gratis. Pressley 
 V. Harrison, supra. 
 
 Actions in which receivers may be appointed must be actions in which 
 
220 EQUITY PRINCIPLES. 
 
 Having in view tlie real object and purpose of tile appointment 
 of a special receiver, such a receiver will be appointed in the fol' 
 lowing instances: (A) Where the party whose property is af- 
 fected by the litigation is under such disability as to be unable 
 to take care of or manage it, as where the party is a lunatic or 
 infant;^ (B) Where each of the parties litigant is equally entitled 
 to possession, but the circumstances are such that it is not proper 
 for either of them to retain control; as in the case of litigation 
 between partners, cotenants, etc. ;^ (C) Where the party entitled 
 to the possession of property pending Htigation is misapplying or 
 spoliating it, to the detriment of the other party claiming an 
 eqtdtable interest therein;' (D) Where a suit is pending to sub- 
 there are adversary parties. A receiver cannot be appointed in an ex parte 
 proceeding. Hardy v. McClellan, 53 Miss. 507. 
 
 It seems well settled that equity has no jurisdiction of a suit brought for 
 the mere appointment of a receiver, in which no other relief is sought. The 
 remedy is merely auxiliary to and incident to a pending suit in chancery. 
 Dale V. Kent, 58 Ind. 584; Brinkman v. Ritzinger, 82 Ind. 358; Pressley v. 
 Harrison, supra; Merchants' Bank v. Kent, 43 Mich. 292; s. c. 5 N. W. Rep. 
 627; Hardy v. McClellan, 53 Miss. 507; Schlect's Appeal, 60 Pa. St. 175; 
 Emerson's Appeal, 95 Id. 258; Sup. Sit. Iron Hall v. Baker, 20 L. R. A. 210, 
 note; Beach, Rec. 70. 
 
 ' Fetter on Equity, 331. This author says, at p. 332, that the court will, 
 upon a proper case being made out, protect the estate of an infant by ap- 
 pointing a receiver, as, where no guardian exists, or where the parent of the 
 infant, in possession of the property, is squandering it. So, also, in the case 
 of a lunatic, where the person appointed guardian or committee, declines to 
 act. See Smith on Receivers, 545-547. 
 
 " Fetter on Equity, 331; Cox v. Volkert (Mo.), 1 West. 429; Katz v. Brew- 
 ington, 71 Md. 79; s. c. 20 Atl. Rep. 139; Word v. Word, 90 Ala. 81; s. c. 7 
 So. Rep. 412. A receiver for a partnership may be denied, although com- 
 plainant is excluded from the business, where he appears principally in 
 fault for the condition of affairs, and defendant is clearly responsible. Rhodes 
 V. Wilson, 00 N. J. 000; s. c. 19 Atl. Rep. 732. See Smith on Receivers, 
 
 305-339- 
 
 3 Fetter on Equity, 331, 332: This author says that the court may on a 
 proper showing, dispossess an executor or trustee, and appoint a receiver, 
 but it will not do so on slight grounds. Misconduct, waste of trust prop- 
 erty, and insolvency, have been sufficient grounds. 
 
 On similar grounds, says the same author, insolvency of the mortgagor 
 and the inadequacy of the security, a court of equity will at the suit of bond- 
 holder secured by mortgage on the property of a railroad company, appoint 
 a receiver in aid of foreclosure proceedings. 
 
 "A court of equity has power to appoint a managing receiver of a railroad 
 and to authorize such receiver to raise money necessary for its preservation 
 
FIDUCIARIES. 221 
 
 ject lands to the payment of liens thereon, and it is shown that 
 the debtor is insolvent, or that the lands are likely to prove in- 
 sufficient to satisfy the undisputed or ascertained liens existing 
 thereon, and it is sought to sequester the rents and profits of the 
 lands until a sale thereof can be made;^ (K) Where there is a 
 conflict of claims or Ikns with reference to property, either real 
 or personal, and it is sought to preserve the same from waste or 
 destruction, pending suit to settle the rights of the respective 
 claimants;^ (F) And by virtue of statute^ the circuit courts of 
 this state, in cases properly coming before them, may appoint re- 
 ceivers for and wind up the affairs of foreign corporations that 
 have done business, acquired property, and contracted debts in 
 this state.* 
 
 § 138. Illustrative instances of the court's refusal to ap- 
 point a special receiver, and those wherein ap- 
 pointments have been made — 
 
 Where the property is already in the hands of trustees, created 
 by deed of trust to secure creditoi's, and it is not shown that the 
 
 and management, and nxake the same a first lien thereon." Wallace v. 
 Loomis, 97 U. S. 146-163, 24 L. ed. 895. 
 
 "When a court of chancery appoints a receiver of railroad property, it may 
 impose such terms in reference to the payment from the income during the 
 receivership, of outstanding debts for labor, supplies, equipment or perma- 
 nent improvement of the mortgage property as may under the circumstances 
 of the particular case, appear to be reasonable." Fosdick v. Schall, 99 U. 
 S. 235-256, 25 L. ed. 339. 
 
 "It is in the power of the court to use the income of the receivership to 
 discharge obligations for labor, supplies and the like, which but for the 
 diversion of funds, would have been paid in the ordinary course of business. ' ' 
 Idem. 
 
 ' Ogden V. Chalfant, 32 W. Va. 559; s. c. 9 S. E. Rep. 879; Dunlap v. 
 Hedges, 35 W. Va. 287; s. c. 13 S. E. Rep. 656; Grantham v. Lucas, 15 W. 
 Va. 425. 
 
 " Kerr v. Hill, 27 W. Va. 576; Dunlap v. Hedges, supra. But under this 
 head the appointment of a receiver may be dispensed with, if the debtor 
 will give security to account for the rents and profits, in case there should 
 be a deficiency upon a sale of the premises under the decree of the court. 
 Grantham v. Lucas, supra. See Kanawha Coal Co. v. Welch Coal Co., 00 
 W. Va. 000, 31 S. E. Rep. 514, where the rules governing the appointment 
 of receivers are tersely stated. 
 
 ' Code, chap. 53, sees. 58, 59. 
 
 ♦ Swing V. Bentley & Gerwig Furniture Co., 45 W. Va. 283, 31 S. E. 
 Rep. 925. 
 
222 EQUITY PRINCIPLES. 
 
 deed is illegal or fraudulent, the court will not appoint a receiver 
 and take tlie property out of the hands of the trustees at the in- 
 stance of creditors, where the trustees have not refused to make 
 sale of the property, or have not been asked to do so by the party 
 moving for the appointment of a receiver.' 
 
 A receiver will not be appointed of a trust estate, while chan- 
 cery proceedings are pending for the removal of a trustee, imless 
 a very strong case is made out;* nor of the rents, issues and 
 profits of real estate, to pay over and account for them to a party 
 whose claim is not charged upon the land;' nor to take charge of 
 a trust fund, merely because the trustee has mixed such fund 
 with his own, where there is no pretense that the fund is thereby 
 endangered;* nor upon the death of the defendant in a creditor's 
 suit, upon its revivor against his personal representative, as the 
 property of the debtor must be disposed of in due course of ad- 
 ministration;^ nor of property in which the plaintiff has no in- 
 terest;* nor of the property of a decedent upon a bill filed in the 
 circuit court, to contest the validity of his will, which has been 
 admitted to probate.' 
 
 When the court is unable to see that any benefit will result 
 from the appointment of a receiver in the cause, or that any in- 
 jury will follow from refusing the relief, it will not interfere, 
 especially if it is apparent that great confusion and difficulty 
 in the management of the property may result to both parties 
 from a receivership.' So, if, upon consideration of all the cir- 
 cumstances of the case, it is apparent that greater injury will 
 ensue from appointing a receiver than from leaving the property 
 in its present possession, or if other circumstances of propriety 
 or convenience render the appointment improper or inexpedient, 
 the court will refuse to interfere.* Nor will a receiver be ap- 
 pointed in an improper case, even by consent of parties, especially 
 when the rights of third persons are concerned and may be 
 jeopardized by the appointment.^" 
 
 ' Pyles V. Riverside Furniture Co., 30 W. Va. 123; a. c. 2 S. E. Rep. 909; 
 Harden v. Wagner, 22 W. Va. 356. 
 ' Poytliress v. Poythress, 16 Ga. 406. 
 3 Mayor of Baltimore v. Chase, 2 Gill & J. (Md.) 376. 
 
 * Orphan Asylum v. McCartee, Hopk. (N. Y.) 429. 
 > Sylvester v. Reed, 3 Edw. (N. Y. ) 296. 
 
 * Smith V. Wells, 20 How. (N. Y. ) Pr. 26. 
 
 r Kirby v. Kirby, 84 Va. 627, 5 S. E. Rep. 539. 
 
 * I Bart., Ch. Pr. 481, 482. v /aem. .« /aem 
 
FIDUCIARIES. 2: 
 
 But where an administrator is seeking to administer propert 
 the title to wliich clearly appears to be in another, and the ci 
 cumstances indicate that the rights of all parties would therel 
 be more effectually and expeditiously protected, a receiver shou 
 be appointed.^ So where the plaintiff shows a probability th 
 he will succeed at the hearing, and the appointment of a receiv 
 will do little injury to the defendant, while, if the appointme: 
 is not made, the subject of litigation will be removed beyond tl 
 reach of the court, a receiver should be appointed.' And it h 
 been held that a receiver may be appointed in a partition suit, 
 against a person claiming the rents and who is amply responsib 
 for the amount thereof, and this, too, though the defendant offe 
 to indemnify the plaintiff against loss because of the coUectii 
 of the said rents.' And where the judgment far exceeds tl 
 value of the property, a receiver may be appointed in an actic 
 to subject the real estate to its payment, the judgment being 
 lien thereon, although the property is not in danger of bei: 
 wasted or injured.* So where the evidence is such as to rend 
 it uncertain whether or not a common-law marriage existed t 
 tween an intestate and a woman with whom he lived for sevei 
 years, such marriage rendering their offspring legitimate and e 
 titling them to inherit, and no great harm can result to the Ie 
 ter, to whom the decedent executed deeds for all of his propert 
 the validity of which is doubtful, by holding that those entitli 
 to inherit in cases of illegitimacy have made out a prima /«< 
 case or right to the estate, a receiver of the estate will be a 
 pointed until the final hearing on the merits.^ So, also, when 1 
 assignee for the' benefit of creditors fails to keep the fund i 
 trusted to him separate from his individual property, or wastes 
 misappropriates it, or a material part thereof, or when it appes 
 that there is danger of misappropriation or of loss, from his m 
 conduct or that of his agents, of a material part of the tri: 
 property, the court may appoint a special receiver thereof in 1 
 stead to administer the assets.' And in an action by next frien 
 in the name and behalf of a person of weak mind, to set asi 
 
 ' Hill V. 'Arnold, 79 Ga. 367, 4 S. E. Rep. 751. 
 
 " Sobemheimer v. Wheeler, 45 N. J. Eq. (18 Stew.) 614, 18 All. Rep. 23 
 
 3 Rapp V. Reehling, 122 Ind. 255, 23 N. E. Rep. 68. 
 
 < Shannon v. Hanks, 88 Va. 338, 13 S. E. Rep. 437- 
 
 5 Robinson v. Taylor, 42 Fed. Rep. 803. 
 
 e Wagner v. Coen, 41 "W. Va. 351, 23 S. E. Rep. 735. 
 
224 EQUITY PRINCIPLES. 
 
 conveyances by such person, and to protect him from the undue 
 influence and fraud of others, it is proper for the court to appoint 
 a receiver to take charge of the property involved, pending the 
 Htigation.i 3q [^ Texas, the statute, it is said, authorizes the 
 appointment of a receiver to take charge of property alleged to 
 belong to the plaintiff, in order that it may not be disposed of by 
 the defendant pending litigation.^ Also, a court of equity may 
 appoint a receiver to take possession of propert5' and hold the 
 same, subject to the direction of the court, which is charged with 
 the payment of debts, when there is manifest danger of its loss 
 or destruction, or of material injury thereof to those interested, 
 or where any fund or property may be in litigation, and the 
 rights of either or both parties cannot be otherwise fully pro- 
 tected.' Ivikewise where a party establishes an apparent right to 
 land, and the person in possession is insolvent, a receiver will be 
 appointed to take charge of the rents, issues and profits thereof 
 pending a suit in chancery with reference to such property.* 
 And when mortgaged premises will probably be insufficient to 
 pay the debt and the mortgagor is insolvent, the mortgagee is 
 entitled to the rents, to satisfy the anticipated deficiency, and 
 may have a receiver appointed for the purpose of having the 
 rents collected and applied to the satisfaction of the mortgage 
 debt.' It is also within the power of a court of equity in a 
 creditor's suit, to call in the assets from the hands of a personal 
 representative and place them in the hands of a special receiver 
 
 ' Edwards v. Edwards (Tex. Civ. App.), 36 S. W. Rep. 1080. 
 
 • Lynn v. First National Bank (Tex. Civ. App.), 40 S. W. Rep. 228. We 
 have not examined the Texas statute, to ascertain whether it authorizes the 
 appointment of a receiver in such a case by apt and specific language; but 
 whether it does so or not, it seems to us, in the absence of such language in 
 a statute, that the court should appoint a receiver in such a case as this. It 
 can injure neither party to the action, when the contention is over the right 
 of property, and if it is placed in the hands of the court through its re- 
 ceiver, it can be invested, or made productive, perhaps, so that the property 
 and its earnings can be forthcoming to answer the court's decree upon the 
 merits of the case upon a final hearing. Thus, where two parties have an 
 equally good claim against certain property, which is not large enough to 
 satisfy both, the court will appoint a receiver. Hamberlain v. Marble, 24 
 Miss. 586. 
 
 3 Orton V. Madden, 75 Ga. 83. 
 
 * McNair v. Pope, 96 N. C. 502. 
 
 s Bristow V. Home Bldg. Co., gr Va. 18, 20 S. E. Rep. 947. 
 
FIDUCIARIES. 2 
 
 appointed by the court, for the preservation of the fund, and 
 apply it in the due course of administration.^ 
 
 § 139. Appointment of special receiver while case 
 pending in the court of appeals — 
 After a decree has been entered in a cause, either interlocuto 
 or final, and the case has been taken to the supreme court 
 appeals, the court of original jurisdiction may appoint a recei\ 
 in the cause to take charge of the property pending the appe 
 If the decree appealed from is not a final one, in the sense 
 ending the cause, the receiver may be appointed without the i 
 of a petition; but if the decree is a final one, the case may be 1 
 stored to the docket by petition and a receiver then appointei 
 Thus, too, where a decree for the sale of real estate has been t 
 tered in a suit brought to enforce the lien of a judgment up 
 real estate, and an app>eal and supersedeas to such decree ha 
 been granted by the supreme court of appeals, the circuit cot 
 may, in a proper case, to preserve the rents and profits of su 
 real estate, appoint a special receiver during the pendency of t 
 case in the appellate court.' 
 
 § 140. How a special receiver may be appointed — 
 
 Our statute* does not declare how the application for the a 
 pointment of a special receiver shall be made, though it is usi 
 'to set forth the grounds upon which the appointment is sought 
 the bill of complaint, duly verified,^ and to bring to the cour 
 attention the necessity and reason for the appointment of a i 
 ceiver by means of the bill itself;* yet if the bill on its face dc 
 not show a stifficient grotind for the interposition of a court 
 equity in this regard, the bill will not be demurrable, as plea 
 
 ' Davis V. Chapman, 83 Va. 67, i S. E. Rep. 472. 
 
 ' Adkins v. Edwards, 83 Va. 316; s. c. 2 S. E. Rep. 439. 
 
 3 Hutton V. Lockridge, 27 W. Va. 428. < Code, chap. 133, sec. 
 
 s Krohn v. Weinberger (W. Va.), 34 S. E. Rep. 746. The verification 
 the bill by the plaintiflf for the appointment of a receiver is ordinarily s 
 ficient. 
 
 ' Kerr v. Hill, 27 W. Va. 576, and especially at pp. 584-586; Reynolds 
 Quick, 128 Ind. 316; s. c. 27 N. E. Rep. 621; Sellers v. Stoffel, 139 Ind. 4 
 s. c. 39 N. E. Rep. 52; Bloodgood v. Clark, 4 Paige, Ch. 574, 3 N. Y. C 
 Reps (L. ed.) 567, and note; Harris v. U. S. Sav. F. & Ins. Co., 146 Ind. 2 
 45 N. E. Rep. 328. 
 15 
 
226 EQUITY PRINCIPI<ES. 
 
 ings and demurrers are not relevant to the application of the ap- 
 pointment of a receiver by the court.^ 
 
 The appointment is properly made on motion or bill, with no- 
 tice to the defendant, and the motion may be heard on affidavits- 
 or oral testimony in the discretion of the court or judge. Yet 
 the appointment may be made upon the allegations of the bill 
 alone where they are in themselves sufficient to authorize the 
 court to act.' And the bill for the appointment of a special re- 
 ceiver, and especially when the application therefor is made ex 
 parte and without notice, and before a decree under it in the court, 
 should set forth with distinctness and particularity the facts and. 
 circumstances upon which the application is predicated,* and con- 
 tain a specific prayer for the appointment of such receiver.* 
 But, though the plaintiff in his bill has made a prima fade case 
 for the appointment of a special receiver, if its allegations are 
 fully and fairly denied by answer, the question of the appoint- 
 ment of such receiver is no longer regarded as addressed to the 
 discretion of the court, and it is error to appoint a receiver when 
 the charges of the bill are thus denied.' 
 
 ' Bufkin V. Boyce, 104 Ind. 53; s. c. 3 N. E. Rep. 615; Verplank v. Caines,. 
 I John. Ch. 57, i N. Y. Ch. (L. ed.) 58; Chicago, etc., Co. v. United States; 
 Co., 57 Pa. St. 83. 
 
 » Pressly v. Harrison, 102 Ind. 41; s. c. i N. E. Rep. 18S, 191. 
 
 ' Sellers v. Stoffel, supra, and the cases cited under this section. 
 
 * Fricker v. Peteps, 21 Fla. 254- Wilson v. Maddox, 46 W. Va. 641, 33 S.. 
 E. Rep. 775. 
 
 5 Wilson V. Maddox, supra. 
 
 "The bill or application must ^tate facts suflScient to show cause for the 
 appointment of a receiver, and should be verified. The bill may be used 
 and serve the purpose of both a complaint and application. In such a case 
 it must contain all allegations essential to the appointment of a receiver. 
 But, if the bill does not contain averments sufficient to warrant the appoint- 
 ment, it may be supplemented by a separate petition or application which 
 differs from a motion for a receiver in that the latter is based on the bill, and 
 moves the court to act upon it. 
 
 "Usually the practitioner anticipates the remedy by appointment of a re- 
 ceiver, and drafts the bill so that it contains all averments necessary to war- 
 rant the appointment; and then the practice is to move for a receiver, the- 
 motion being grounded on the bill. But the appointment may also be 
 
 sought by separate petition or application, filed with the suit." Beach Rec - 
 148, 149. 
 
 " Wilson V, Maddox, supra. 
 
FIDUCIARIES. 2: 
 
 § 141. \Vhen notice should be given as to the appoin 
 ment of a receiver — 
 
 Courts of equity are very averse to the appointment of r 
 ceivers upon mere ex parte applications therefor, and exerci 
 extreme caution in the matter of thus appointing such r 
 ceivers, and courts should be careful that a proper case has bei 
 presented before exercising this extraordinary power; and 
 should not be done without notice to the party whose proper 
 is to be affected, except in cases of the greatest emergency, d 
 manding the immediate interference of the court. ^ While, ev 
 in the absence of statute expressly requiring notice, and thouj 
 it is the better practice, and the one sanctioned by the best a 
 thorities on the subject, to require notice to be given to the d 
 fendant before passing upon an application for the appointme 
 of a receiver, unless in cases of great emergency and imperati 
 necessity,' still the appointment without notice is purely a matt 
 of judicial discretion, and to make the appointment in the a 
 sence of any notice is inherent in a court of equity.^ Hence, 
 the court makes the appointment without notice, its validity 
 not affected, and the receiver may act as if the regular practi 
 had been observed in the matter of his appointment.* 
 
 The instances in which the appointment of a receiver may 
 made without notice, as stated by a recent author,* and whi 
 constitute exceptions to the rule requiring notice, are the f 
 lowing: 
 
 (i) Where the appointment of a receiver is prayed for as 
 measure of final relief. In such case the bill of complaint, wi 
 the service of the writ, are treated as notice. 
 
 (2) Where all parties are before the court consenting to t 
 appointment, either in person or by attorney. 
 
 (3) Where the defendants, or parties in interest, have £ 
 sconded, or are beyond the jurisdiction of the court, or cam 
 be found. Of course, under such circumstances, it would 
 unreasonable to require notice, and the rule is not obligatory. 
 
 ■ Ruffner et al. v. Mairs et al., 33 W. Va. 655; s. c. 11 S. E. Rep. 5; 1 
 Petroleiim Co. v. Gale et al., 6 W. Va. 525; "Wabash R. Co. v. Dykeman, : 
 Ind. 56; s. c. 32 N. E. Rep. 823; Chicago & S. E. Ry. Co. v. Cason, 133 Ii 
 49; s. c. 32 N. E. Rep. 827. 
 
 = Ruifner v. Mairs, 33 W. Va. 655, 11 S. E. Rep. 5, 8, in the opinion 
 English, J., -who delivered the opinion of the whole court. 
 
 3 Beach, Rec. 164. ■• Idem. 5 Smith on Receivers, 16, 17 
 
■228 BQUITY PRINCIPLES. 
 
 (4) Where there is imminent danger of loss, or great damage, 
 or irreparable injury or the greatest emergency. Sometimes it 
 seems imperative that this exception be enforced as when, by 
 notice, the very purpose of a receiver may be rendered wholly 
 nugatory. 
 
 But, where the motion is made in term time in a pending suit, 
 no notice to the party whose property is to be affected by the ap- 
 pointment is necessary.^ 
 
 In all cases, however, where the appointment of a receiver is 
 sought to take charge of real estate, or the rents, issues and 
 profits thereof, notice of the application must be given, and the 
 appointment of such a receiver without notice is erroneous, and 
 will be set aside by the supreme court of appeals.^ And by vir- 
 tue of our statute, a receiver of real estate and the rents, issues 
 and profits thereof, cannot be appointed by the judge of a circuit 
 court in vacation.' 
 
 It will be observed, that an appeal will lie from the action of 
 the circuit court in the matter of appointing a receiver of real 
 estate, as the effect of an order making such appointment oper- 
 ates a change of the possession of such real estate;^ but our 
 court of appeals at one time seemed to incline to the opinion, if 
 it did not in effect decide, that a different rule should obtain 
 when a receiver of personal property is appointed, and that no 
 appeal in such case will lie.^ But since the rendition of the deci- 
 sions cited in the foot-notes, our court of appeals, in a recent de- 
 cision, has held that an appeal lies to the action of the court 
 in appointing a receiver of personalty the same as in cases of 
 realty.' 
 
 § 142. Rights and powers of a receiver as to bringing 
 suits — 
 
 In the first place, it is well settled that the receiver cannot 
 bring any action at all touching even the property with the care 
 and management of which he is charged, unless by leave of the 
 
 ' Ogden V. Chalfant, 32 W. Va. 559; s. c. 9 S. B. Rep. 879; McIvCan v. 
 Lafayette Bank, 3 McLean, 503. 
 
 ' Button V. Lockridge, 27 W. Va. 428. 3 Code, chap. 133, sec. 28. 
 
 * Hutton V. Lockridge, supra. 
 
 5 Hutton V. Lockridge, 27 W. Va., in the opinion of Green, J. at 4«- Har- 
 ris V. Hauser, 26 W. Va. 601. 
 
 « Ruffner v. Mairs, 33 W. Va. 655, n S. E. Rep. 5. 
 
FIDUCIARIES. 2: 
 
 court duly authorizing him to do so;' nor has the receiver, I 
 the strict lerms of the law, a right to bring suit in a court ou 
 side of the territorial limits of the jurisdiction conferring h 
 appointment as receiver.^ But the courts of a foreign jurisdi 
 tion may permit him, under certain circumstances, to bring sv 
 in regard to the property of the receivership;' and this no 
 seems to be the tendency of the modem decisions,* so that 01 
 supreme court of appeals holds that a receiver, trustee, or assign 
 of a dissolved foreign corporation, appointed in the state of i 
 domicile, may institute in the courts of this state suits in his o^p 
 name or the corporate name for debts or claims due such co 
 poration/ 
 
 "Where a receiver is properly proceeding to enforce a judgme 
 Hen against the lands of the debtor, it is not necessary to allej 
 or prove that he is proceeding by the permission or authority 
 the cotirt appointing him, in the absence of any denial of 1 
 right to conduct such suit.* 
 
 As to how the suit should be brought, whether in the name 
 the party of whose property the receiver has taken charge, 
 whether in the name of the receiver, there is considerable diversi 
 of opinion.' It seems clear, however, that where the action i 
 lates to the receiver's possession of the property and is bas 
 
 ' Moriarty v. Kent, 71 Ind. 601; Keen v. Brackeuridge, 96 Ind. 69; Gre 
 V. Winter, i Johns. Ch. 60; Ward v. Swift, 6 Hare, 312; Merritt v. Merri 
 16 Wend. 405; Davis v. Snead, 33 Gratt. 705; Wilson v. Welch, 00 111. a 
 s. c. 31 N. E. Rep. 712; Davis v. Ladoga Creamery Co., 128 Ind. 222; s. c. 
 N. E. Rep. 494; Beach, Rec. ? 650. 
 
 " Catlin V. Wilcox Silver Plate Co., 123 Ind. 477; s. c. 24 N. E. Rep. 2; 
 Texas & P. R. Co. v. Gay, 86 Texas, 571; s. c. 25 L. R. A. 52; Gilman 
 Hudson River Boot and Shoe Co., 84 Wis. 60; s. c. 23 I,. R. A. 52 and n( 
 52-57; Re Schuyler's Steam Towboat Co., 136 N. Y. 169; s. c. 20 L. R. 
 and note, 391-395. Opinion of Dent, Judge, in Grogan v. Egbert, 44 " 
 Va. 75, 28 S. E. Rep. 714. 
 
 3 Gilman v. Hudson River Boot and Shoe Co., supra; Cole v. Cunnii 
 ham, 133 U. S. 107, 33 L. ed. 538; Reynolds v. Adden, 136 U. S. 353, 354, 
 L. ed. 362; Bagby v. Atlantic M. & O. R. Co., 86 Pa. St. 291. 
 
 ■• Opinion of Dent, J., in Grogan v. Egbert, supra. 
 
 5 Swing V. Bentley & Gerwig Furniture Co., 00 W. Va. 000, 31 S. E. R 
 925. See Castleman & Templeman (Md.), 41 L. R. A. 367. 
 
 ' Howard v. Stephenson, 33 W. Va. 116; s. c. 10 S. E. Rep. 66. See, al 
 Ponder v. Catterson, 127 Ind. 434; s. c. 26 N. E. Rep. 66. 
 
 7 Beach, Rec. (Anderson's ed.) sec. 696, p. 743. 
 
230 EQUITY PRINCIPI,ES. 
 
 thereon that he may sue in his own name,^ as in actions of trover 
 and conversion, detinue and unlawful entry and detainer.^ So, 
 •too, where a receiver has obtained judgment in his own name, 
 he may bring suit to enforce its collection in like manner.' And 
 an examination of the authorities will show that where a statute 
 authorizes it, or where the court transfers or directs the transfer 
 of property to the receiver and empowers him to sue in his own 
 name with reference thereto, that suit may be brought in the 
 name of the receiver.* But in the absence of statute or authority 
 specially derived from the court appointing him, the receiver 
 cannot maintain a suit in his own name." The reason given for 
 this is that the legal title to choses in action, or other property 
 which he is authorized to reduce to possession, is ordinarily not 
 transferred to the receiver, but remains in the owner, in whose 
 name suit may be brought. This seems to be the settled rule as 
 recognized by the text writers.* 
 
 It is also laid down in strong terms in a New York case that a 
 receiver may sue to set aside a fraudulent conveyance, so far as 
 the same affects the rights of creditors whom he represents.^ 
 
 If conditions have been interposed touching the receiver's 
 right to sue, they must be complied with before a suit can be 
 maintained by him; as where he is required to give bond and 
 security, he cannot sue until such bond and security have been 
 given.' 
 
 § 143. When and vrhere the receiver may be sued — 
 
 It is well settled, in the absence of a statute authorizing it, 
 that a receiver cannot be sued for injury to person or property, 
 
 ' Idem; Boyle v. Townes, 9 I/eigh, 158. 
 
 - Idem; Kerr v. Hall, 117 Ind. 405, 20 N. E. Rep. 279. 
 
 3 Howard v. Stephenson, 33 W. Va. 116, 10 S. E. Rep. 66; Elliott v. Tra- 
 hem, 35 W. Va. 634, 14 S. E. Rep. 223. 
 
 < 2 Beach, Mod. Eq. Jur., I 950, citing numerous cases; Ponder v. Catterson, 
 127 Ind. 134, 26 N. E. Rep. 66; Rhodes v. Hilligoss, 16 Ind. App. 478, 45 
 N. E. Rep. 666. . 
 
 5 Pouder v. Catterson, supra. 
 
 * High, Rec. 208; Beach, Rec. § 650; Kerr, Rec. 192, 193; Ewd. Rec. 136; 
 2 Beach, Mod. Eq. Jur. \ 950. 
 
 ' Mandellville v. Avery, 124 N. Y. 376; s. c. 26 N. E. Rep. 951. See also 
 Franklin Nat. Bk. v. Whitehead, 149 Ind. 560, 39 L. R. A. 725. 
 
 ' Reynolds' Ex'r v. Pettyjohn et al., 79 Va. 327. 
 
FIDUCIARIES. 231 
 
 except by leave of the court appointing him,' nor can he be sued 
 in any other court or jurisdiction than the one wherein his ap- 
 pointment was made without the consent of such court.' But in 
 •order to sue a receiver appointed by a court of the Unted States 
 no permission of that court is requisite, there being an act of 
 •congress dispensing therewith.' 
 
 ^ 144. The general rights, powers and duties of a special 
 receiver — 
 The receiver appointed in a pending suit, known as a special 
 receiver, can only exercise those powers and claim those rights 
 which arise by virtue of the court's decree conferring his appoint- 
 ment,* nor has he any power or title then until he has given the 
 bond required of him. This is a condition precedent to the vest- 
 ing in him of any power, right or authority as to the property to 
 which his appointment relates,^ unless the sheriff of the county 
 is appointed the special receiver.* He cannot even loan out the 
 money that has come to his hands as such receiver, without an 
 
 ' Jones V. Browse, 32 W. Va. 444; s. c. 9 S. E. Rep. 873; St. Louis A. & S. 
 R. Co. V. Hamilton, 158 111. 366; s. c. 41 N. E. Rep. 777. In this last^case it 
 ■was held that a failure to allege in the pleading that suit was brought against 
 the receiver by leave of the court rendered it demurrable. 
 
 » Reed v. Richmond & A. R. Co., 84 Va. 231; s. c. 4 S. E. Rep. 587. On 
 this point the court in the course of its opinion says: "There is no better- 
 settled proposition than that a receiver, as such, cannot be sued elsewhere 
 than in the court by which he was appointed, -without the leave of such 
 court first had and obtained, and whether leave to sue will be granted, rests 
 in the discretion of the court. This principle has been nowhere more em- 
 phatically asserted than by the Supreme Court of the United States in a num- 
 ber of cases, and by this court in the recent case of Melendy v. Barbour, 78 
 "Va. 544. Indeed such leave is essential to the jurisdiction of any other 
 court, state or federal, in such case. Peale v. Phillipps, 14 How. 368; Barton 
 V. Barbour, 104 U. S. 126." In the folio-wing cases the failure to obtain the 
 consent of the court to sue the receiver was held not to be a jurisdictional 
 question, and might be waived by the receiver. Mulcahey v. Strauss, 151 
 111. 70; s. c. 37 N. E. Rep. 702; Tobias v. Tobias, 51 Ohio St. 519; s. c. 38 
 N. E. Rep. 317; Elthart Car Works Co. v. Ellis, 113 Ind. 215; s. c. 15 N. E. 
 
 Rep. 249. 
 
 3 Ball V. Mabry, 91 Ga. 781; s. c. 18 S. E. Rep. 64; Centra] Trust Company 
 ^,. East Tennessee. V. & G. R. Co., 59 Fed. Rep. 523. 
 
 * I Bart. Ch. Prac. 490; Beach, Rec. (Aid. ed. ) 5, 6. 
 
 5'Crumlish's Adm'r v. Shenandoah Val. R. Co., 40 W. Va. 627; s. c. 22 
 
 S. E. Rep. 9°- 
 
 « Grantham v. Lucas, 15 W. Va. 432. 
 
232 EQUITY PEINCIPLBS. 
 
 order of court directing such loan, and this is so either as to a gen- 
 eral or special receiver;^ nor can he incur any expenses,^ or contract 
 any debts,' to be charged against the property he may have in 
 his possession without the order of court; and the receiver must 
 obey all orders of the court as to the funds that are in his hands 
 as such receiver.* But with the growth of equity jurisdiction 
 it has become usual to clothe him with much larger powers than 
 were formerly conferred.'' 
 
 In respect to the distribution of the fund held by the receiver 
 he has no discretion, but must pay the same to whomsoever he is 
 ordered by the decree of the court; * and his decision upon the 
 validity of a claim presented to him is not final, but may be 
 passed on by the court.' 
 
 And Mr. Barton says that ' 'a receiver is vested with a general 
 discretion in the management of the property over which he is 
 appointed, and if he acts in good faith, and without prejudice to 
 the rights of the parties in interest, his action will be sustained 
 by the court. 
 
 "The receiver's discretion in this and other respects may be 
 defined in general terms to extend to such subjects, and to be 
 exercised in such way, as cannot properly be reached by express 
 orders of court; and one of the principal reasons for appointing 
 a receiver is that the court must rely upon the judgment of some 
 one to do that which in the nature of things the court itself can- 
 not do. As it is in the power of the court to order such things, 
 the receiver will not be allowed to exercise his discretion in the 
 distribution of the funds, in settling demands against the estate, 
 to make more than ordinary repairs without leave, to enter into 
 agreements except subject to the approval of the court, or to 
 make sales except as the court or the law directs, and at such 
 sales he cannot purchase. 
 
 "The receiver may from time to time apply to the court for in- 
 structions as to his duties in matters over which he would ordi- 
 narily be entitled to exercise his discretion, and the application 
 may be made ex parte, although it is deemed the better practice 
 
 ■ Darby v. Gilligan, 37 W. Va. 59; s. c. 16 S. E. Rep. 507. 
 ' Vilas V. Page, 106 N. Y. 439; s. c. 13 N. E. Rep. 743. 
 3 2 Beach, Mod. Eq. Jur., § 955. 
 
 * B. & O. R. R. Co. V. Vanderwerker, 33 W. Va. 191; s. c. 10 S. E Rep 
 
 289. ^" 
 
 5 Beach, Rec. (Aid. ed.) 56. ' i Bart. Ch. Prac. 491. 7 Mem. 
 
FIDUCIARIBS 233 
 
 to give notice to all the parties interested in the fund. In giving 
 such instructions the court may clothe the receiver with very- 
 large powers over the subject involved in the suit. 
 
 ' 'The receiver may employ counsel on his own behalf, and to 
 represent him in such suits as he may bring or defend, and the 
 counsel will be compensated for their services out of the fund. 
 The usual and better practice is, however, to obtain the leave of 
 the court for the employment of counsel and for the compensa- 
 tion.' 
 
 "He may receive and receipt for debts which are due, or which 
 may become due, and when the appointment is over the rents and 
 profits of real estate, if there are tenants in possession, they are 
 compelled to attorn, and the receiver may collect from them the 
 rents which are due as well as such as may become due. In the 
 case of rents one exception is said to exist to the rule refusing 
 the receiver the right to sue without leave of the court; for it is 
 said that the practice is for the receiver to distrain at his own dis- 
 cretion for rent in arrears within the year, but if in arrear for 
 more than a year, an order is said to be necessary; and the same 
 distinction is said to exist in leases made by the receiver. ' ' ^ 
 
 Where a receiver is directed to make sale, the authority to sell 
 necessarily carries with it authority to give the purchaser the 
 usual evidence of a transfer of title, the power of the receiver to 
 give the deed being implied from the order of sale.' 
 
 A receiver, like any other fiduciary, cannot purchase at his 
 own sale; and where there is more than one receiver each is 
 liable for the malfeasance of the others to the same extent and 
 under the same circumstances that trustees are liable.* 
 
 When the receiver has been appointed to take possession of 
 property and qualified, he should at once demand possession of 
 the same and take the necessary steps to obtain the possession 
 thereof.^ If property is lost as the result of a failure to exercise 
 reasonable diligence in reducing the same into his possession, he 
 will be charged with the value thereof. ° 
 
 ^Posi, I 148. ' 1 Bart. Ch. Prac. 491-493- 
 
 3 I Bart. Ch. Prac. 494, 495- * Idem. 
 
 5 2 Beach, Mod. Eq. Jur., I 956. • Idem, 
 
234 EQUITY PRINCIPLES. 
 
 § 145. Who should be appointed a special receiver — 
 
 In Beverly v. Brooke et al.,* Baldwin, J., says that the receiver' 
 "is the officer and representative of the court, subject to its 
 orders, accountable in such manner and to such persons as the 
 court may direct, and having in his character of receiver no per- 
 sonal interest, but that arising out of his responsibility for the 
 correct and faithful discharge of his duties. It is of no conse- 
 quence to him how, or when, or to whom, the court may dispose 
 of the funds in his hands, provided the order or decree of the 
 courf furnishes to him a sufficient protection." Hence, the per- 
 son to be appointed a special receiver should be wholly disinter- 
 ested in the subject-matter of htigation, such as would prevent 
 the exercise of his duties and powers without favor to any of the 
 parties concerned therein.' 
 
 His selection is a matter resting pecuharly within the discre- 
 tion of the court making the appointment.' 
 
 In his selection private preference must yield to public con- 
 sideration; and no person, or his counsel, has a right to complain 
 that he or his particular friend is not appointed receiver; but the 
 interest of all parties will be considered in making his appoint- 
 ment; that is, all parties interested, whether they be present or 
 absent, minors or adults, who may rightly rely upon the care 
 and vigilance and unbiased judgment of the court.* 
 
 It follows as a necessary consequence of appointing a receiver 
 before answer filed, that the selection of the person to be ap- 
 pointed must, in the first instance, sometimes be made by the 
 chancellor on the ex parte recommendation of the party applying 
 for the appointment. But later, or on review, most regard has 
 generally been paid to the recommendation of those most inter- 
 ested, and who are most likely to sustain injury without an ap- 
 pointment of a receiver.^ 
 
 The following considerations have weight with the court 
 in the matter of making the appointment of a receiver: The 
 agreement of the parties that one of them or some particular per- 
 son may receive the appointment; that the party proposed is a 
 relative of either party, and while this is not a disqualification, it 
 may, with other circumstances, operate with the court in declin- 
 ing to appoint him; that a nonresident ought not to be appointed; 
 
 ■ 4 Gratt. 208. ' Beach, Rec. §? 45, 46. 3 idem; i Bart. Ch. Pr. 495. 
 
 < 20 Am. & Eng. Enc. Law, 70; i Bart Ch. Pr. 495. 
 s 20 Am. & Eng. Enc. Law, 72. 
 
FIDUCIARIES. 235 
 
 that tlie occupation of the party proposed renders him unfit for 
 the office.' 
 
 It IS the settled rule that one of the parties to the cause shall not 
 be appointed receiver, without the consent of the other party, un- 
 less in a very special case, such as sometimes justifies the appoint- 
 ment of a partner receiver; nor ought a master of the court to be 
 appointed a receiver, as his official duties conflict with the per- 
 formance of a receiver's fimctions, and his double position may 
 cause difficulty in administering justice." 
 
 In cases of partnerships, however, it is not uncommon that one 
 of the partners should be selected, provided there are no charges 
 and counter charges, and no conflict of interests and rights.' But 
 where a surviving partner was appointed a receiver at his own 
 instance, of the partnership affairs, he was held not to be entitled 
 to compensation as such receiver.* 
 
 § 146. The compensation of the receiver — 
 
 As we have already seen,' the compensation of a general re- 
 ceiver by virtue of the statute rests in the discretion of the court, 
 but the law is silent as to the compensation of a special receiver. 
 This statute is simply the embodiment of the principle obtaining 
 in courts of chancery which refers the matter of the compen- 
 sation of all classes of receivers to the discretion of the court, in 
 the absence of a positive law determining the amount of such 
 compensation." But while the character, time and amount of the 
 compensation are left to the sound discretion of the court, it is 
 only in the sense that there are no fixed rules to determine the 
 proper allowance, and is not discretionary in the sense that the 
 courts are at liberty to give anything more than a fair and reason- 
 able compensation,' and while the court that appoints him is 
 better situated to judge of the amount of the compensation of the 
 receiver than an appellate court, yet the latter has a supervisory 
 jurisdiction of the lower court in the matter, and will exercise it 
 when the justice of the case demands it;' but the action of the 
 court below is treated as presumptively correct." The compensa- 
 tion is usually determined by the circumstances of the particular 
 
 ' Idem, 73. See further on this subject, Beach, Rec. 47, 63. 
 
 ' 20 Am. & Eng. Enc. Law, 74- ' i Bart. Ch. Prac. 496. *Idem, 496. 
 
 5 Ante, ? 136. ' Beach, Rec. 822-845. 
 
 ' Idem, 835. ' Idem, citing Martin v. Martin, 14 Oreg. 165. 
 
 9 Idem, citing Stuart v. Boulware, 133 U. S. 78. 
 
236 BQTTITY PRINCIPLES. 
 
 case,' and in accordance with the degree of the responsibility and 
 business ability required in the management of the affairs in- 
 trusted to the receiver, and the perplexity and difiSculty involved 
 in that management.' 
 
 The character of the compensation may take the form of a 
 salary,' to be increased with the varying circumstances of the 
 case,* or commissions regulated by the rule applicable to trustees, 
 guardians and other fiduciaries or a gross sum for the entire ser- 
 vices.^ And the payment of the compensation may be made at 
 stated intervals, and from time to time as the court in its discre- 
 tion may prescribe.' 
 
 With us there is no fixed rule as to the mode of allowing com- 
 pensation to a special receiver; but when the fund is large, it is 
 usual to allow him a specific sum.'' However, the amount and 
 mode of allowance are within the sound discretion of the court, 
 under the circumstances of the particular case, subject to review, 
 as we have seen, on appeal.* 
 
 §147. The accounts of the receiver — 
 
 One of the first duties of a receiver in accepting his trust, is to 
 prepare a true and complete inventory of the property and effects 
 which come into his hands,* and to keep fair and accurate ac- 
 counts of all moneys and funds received and paid out by him.*" 
 And it is said to be the duty of the attorney who procures the 
 appointment of the receiver to direct him in the matter of mak- 
 ing out the inventory, and as to the proper method of keeping 
 and rendering his accounts." 
 
 The assets which he holds as receiver should be kept separate 
 from his own, and in no wise intermingled therewith, the penalty 
 for this breach of duty being usually the charge of interest to 
 the receiver upon the fund which came to his hands. ^ 
 
 His accounts should be presented in such a form as to enable 
 the parties interested to judge of their correctness,'^ and for all 
 
 » Crumlish v. Shenandoah Val. R. Co., 40 W. Va. 627, 22 S. E. Rep. 90. 
 ' Beach, Rec. 834. 
 
 3 Idem, 824. * Idem. s Idem, 822-845. ' Id^m, 
 
 ' Crumlish v. Shenandoah Val. R. Co., 40 W. Va. 627, 22 S. E. Rep. 90. 
 ' Idem.. 
 
 9 Heffron v. Rice, 149 111. 216, 36 N. E. Rep. 562; Beach, Rec. (Aid. ed,) 
 sec. 746, p. 796. 
 
 "* Idem. " Idem. " Beach, Rec. 796. "3 Idem, 798. 
 
FIDTJCIARIBS. 237 
 
 charges against tlie trust fund, lie should take proper receipts 
 from the persons to whom he has paid the money, and ex- 
 hibit them with his report.^ The receiver is held to great strict- 
 ness with reference to his accounts; and when he fails to produce 
 vouchers for disbursements, a satisfactory reason should be given.^ 
 When items appear in the account for which there are no vouch- 
 ers, a verified' statement should be filed showing to whom, for 
 what and when such items were paid, and the verification should 
 be positive.^ 
 
 § 148. The settlement of the accounts of special and gen- 
 eral receivers — 
 
 Our statute * provides that each circuit court, at its regular term 
 after the first day of January in each year, by an order entered 
 of record, shall require one of its commissioners in chancery, 
 other than the commissioner who may have been appointed gen- 
 eral receiver thereof, to state and settle the accounts of all re- 
 ceivers of such court, both general and special, and of all persons 
 to whom any money has been loaned under the order of the court, 
 and which then remains undisbursed. The clerk of the court 
 shall furnish to such commissioner a copy of the order so made, 
 with a list appended thereto exhibiting the names of all such re- 
 ceivers and persons. The said commissioner shall summon such 
 receivers and persons, or personal representatives of such of them 
 as are dead, before him, and audit, state and settle their accounts, 
 and report the same to the circuit court at its next term after 
 such order has been made; and he shall append to the report a 
 statement, showing in separate columns all matters required 
 to be shown by the clerk in the statement mentioned in the 
 fourteenth section of chapter one hundred and thirty-three of 
 the Code of this state. He shall also cause the bonds of the 
 receivers of the court, and the bonds or other securities given for 
 any money loaned under the order of the court, to be produced 
 before him, and shall ascertain if the obligors in such bonds, or 
 if such other securities are sufficient, and report thereon to the 
 court at the times before mentioned.' 
 
 This section includes the settlement of the accounts of receiv- 
 ers, while the sections of the statute hereinafter noticed relate to 
 other classes of fiduciaries. Hence, it is proper to make some 
 
 » Idem, ' Idem. ^ Idem. * Code, chap. 133, sec. 24. s Idem. 
 
238 EQUITY PRINCIPI,ES. 
 
 observations as to what credits and allowances may be permitted 
 to the receiver in his settlements. 
 
 Our court holds that, in the absence of authority previously 
 given, expenditures to be allowed a special receiver must be rea- 
 sonable, and such as are proper, essential and necessary in the 
 due and ordinary execution of his office, and such as were con- 
 templated in his appointment, and according to the nature of the 
 business to which his appointment relates.' In extraordinary 
 cases, involving a large outlay of money, the receiver should al- 
 ways apply to the court in advance for the court's permission to 
 make it.'' 
 
 Under the ordinary and general rule as to necessary expendi- 
 tures, the receiver, without applying to the court, may make such 
 use of the trust fund as is necessary to preserve it, or to secure 
 an income from it according to customary and good usage, sub- 
 ject to the subsequent supervision of the court.' Thus, a re- 
 ceiver has been allowed a reasonable premium paid for the insur- 
 ance of the property for its protection;* also, with the amount of 
 an award paid to recover books necessary for him in conducting 
 suits connected with the receivership, and with amounts neces- 
 sary to employ agents where the property lay at a distance, and 
 with a reasonable compensation for assistants, clerks and watch- 
 men where necessary.* 
 
 A receiver will be allowed fair and reasonable counsel fees paid 
 to counsel necessary in the execution of his receivership.® But 
 the payment of large contingent fees can not be provided for by 
 the court, no matter how great and peculiar their merit may be. 
 This is a matter of express contract to be left to the attorneys 
 and their clients.'' And the practice of allowing to counsel 
 employed by receivers large and extravagant fees is discounte- 
 nanced and disapproved by the courts.' 
 
 ' Crumlish v, Shenandoali Val. R. Co., 40 W. Va. 627, 22 S. E. Rep. 90. 
 " Idem. 3 Beach, Rec. 804. « Idem, 805. s Mem. 
 
 « Crumlisli v. Shenandoah Val. R. Co., supra; Cake v. Woodbury •? App 
 D. C. 60. JO i-f 
 
 ' Crumlish v. Shenandoah Val. R. Co., supra. 
 
 = Idem. A great deal that is said in prior and subsequent sections of this 
 chapter as to the settlement of the accounts of trustees, committees, per- 
 sonal representatives, guardians and curators, applies to receivers, inasmuch 
 as they are treated as trustees in the broad sense of that term. 
 
FIDUCIARIES. 239 
 
 § 149. List of fiduciaries to be kept by the clerks of the 
 circuit and county courts — 
 
 As the subject of "fiduciaries" is one with which the practic- 
 ing attorney has much to do, we here deem it advisable to treat 
 the subject in a general and comprehensive way, following the 
 statutes and decisions and authorities bearing thereon, giving the 
 law relative thereto, that has not already been particularly con- 
 sidered in other sections of this work;^ and the sections of this 
 chapter bearing in a greater or less degree, with special reference 
 to committees and receivers. 
 
 Our code provides that the clerks of the circuit and county 
 ■courts shall keep a record, in a book provided for that purpose, 
 of any personal representative, guardian, curator or committee, 
 authorized to act under the orders of his court, which shall show, 
 in separate columns: (i) The name of every such fiduciary; 
 (2) The name of the decedent for whose estate he is representa- 
 "tive; (3) The name of the living person for whom he is guardian, 
 curator or committee; (4) The penalty of his bond; (5) The 
 names of his sureties; and (6) The date of the order conferring 
 Ms authority. If afterwards, such authority be revoked, the 
 derk or recorder, as the case may be, shall enter in another 
 column the date of the order of revocation. Any clerk failing to 
 make such entry, as to any fiduciary, within ten days after the 
 order conferring or revoking the authority, as the case may be, 
 or to index the same within the like time, in the name of the de- 
 cedent or person represented by such fiduciary, shall, for every 
 such failure forfeit twenty dollars. The clerk at the time of 
 making such entry as to any fiduciary, shall examine whether he 
 has given such bond as the law requires, and if it appear that he 
 has given no bond, or that his bond is insufficient, shall make re- 
 port thereof to his next court.'' 
 
 § 150. Inventory of property coming into the hands of all 
 fiduciaries to be returned by the clerk of the 
 court appointing the fiduciary — 
 It is made the duty of every personal representative, guardian, 
 
 curator or committee, within four months after the date confer- 
 
 ■SeeCh. XV, Executors and Administrators, U io7-ii9i and Ch. XIX, 
 -Guardian and Ward, ?? 204-213. 
 ' Code, chap. 87, sec. i. 
 
240 EQUITY PRINCIPI,aS. 
 
 ring his authority, to return to the clerk of the court appointing^ 
 him, an inventory of all the personal and real estate which has 
 come to his possession or knowledge, or which is under his man- 
 agement or subject to his authority in his fiduciary character; 
 and shall, within four months after any other such estate shall 
 come to his possession or knowledge, return to said clerk a fur- 
 ther inventory thereof. If he fail to make the return first herein 
 required, or the clerk shall have reason to believe that he has 
 failed to make the further return herein required, the clerk shall 
 notify the commissioner of accounts hereinafter mentioned 
 thereof, and said commissioner shall summon said fiduciary to 
 make the return as to which he appears to be delinquent; and if 
 such return be not made within thirty days after the date of the 
 service of the summons, the commissioner, if he be of opinion 
 that such fiduciary is delinquent as to the return of any inventory 
 required by law, shall report the fact to the circuit court of the 
 county as soon as possible. The circuit court shall immediately 
 summon such fiduciary to appear on a day to be fixed by the 
 court, and may compel his attendance by rule and attachment. 
 Such fiduciary upon appearing shall, unless excused for sufficient 
 reason, be fined by the court not less than fifty nor more than 
 five hundred dollars, and be ordered by the court to make such re- 
 turn, within a time to be specified by the court, and if he fail to 
 comply with such order he shall be deemed guilty of a contempt 
 of court, and be dealt with accordingly. An appraisement made 
 according to the eighty-fifth chapter of the Code shall be con- 
 sidered an inventory of such estate as is therein mentioned, if it 
 be signed by the personal representative.^ 
 
 § 151. Return of inventory of sales made by a fiduciary to 
 be made to the clerk — 
 
 Every fiduciary mentioned in the next preceding section, shall, 
 within four months after selling any property as such, return to 
 the said clerk (that is the clerk of the court appointing him) an 
 account of such sales. And when sale of property is made under 
 any deed of trust otherwise than under a decree, there shall, 
 within six months after the sale, be returned by the trustee to the 
 clerk of the court wherein the said deed may have been first re- 
 corded, an inventory of the property sold and an account of the * 
 
 » Code, chap. 87, sec. 2. See ante I 110. 
 
FIDTJCIARIBS. 241 
 
 sales. Any trustee failing to comply witli this section shall for- 
 feit his commissions on such sales. 
 
 Every inventory and account of sales returned under the law 
 as thus provided, shall be recorded by the clerk to whom the re- 
 turn is made.' 
 
 § 152. Liability of fiduciary for debts lost or improperly 
 paid, further considered — 
 
 As we have already seen'' that if any fiduciary shall by his 
 neghgence or misconduct, lose any debt or other money, he shall 
 be charged with the principal of what is so lost and interest 
 thereon in Uke manner as if he had received such principal. 
 
 Our observations on this law, made elsewhere in this work,' 
 apply here and need not be repeated; so that all we need now to 
 do is simply to add a few more statements with reference to the 
 scope of this statute, taken from a very old one in Virginia, with 
 a citation of some additional authorities bearing on the subject. 
 Prior to the enactment of this law a fiduciary was not charged 
 interest on the debt which he failed to collect, but only for the 
 principal sum.* Except as to the debts lost by his neglect or 
 misconduct, a fiduciary is not chargeable with interest, only on 
 his actual receipts of the moneys.^ 
 
 Under this statute, or the principle as announced therein, a 
 personal representative is not liable for a loss occurring by reason 
 of the insolvency of debtors who became so after a sale to them 
 of land of the testator, for which they gave their bonds, which 
 were good and solvent at the time of their execution." 
 
 Any fiduciary, agent or trustee acting within his powers, and 
 acting in good faith, in the exercise of fair discretion, and in the 
 same manner in which he would probably have acted if the sub- 
 ject had been his own, ought not to be held responsible for any 
 loss accruing in the management of the trust fund. Pre- 
 eminent knowledge and uncommon foresight are not required 
 in a trustee or other fiduciary. Ordinary men are to be com- 
 pared and judged by the standard of ordinary men. Common 
 
 ■ Code, chap. 87, sees. 3 and 4. ' Ante, M 112 and 128. 
 
 3 Ante I 112. ■* 2 Kelly's Rev. Stat., page 621, note. 
 
 5 Cavendish v. Fleming, 3 Munf. 198. 
 « Guerrant v. Johnson, 4 Munf. 360. 
 16 
 
242 EQUITY PRINCIPLES. 
 
 skill, common prudence and common caution are all that courts 
 have required. It would be unreasonable to judge of the con- 
 duct of a fiduciary, agent or trustee from subsequent events. 
 His conduct ought not to be condemned if it flowed from an 
 honest, though uninformed and mistaken, judgment.^ 
 
 This statute makes it obligatory upon any fiduciary to plead 
 the statute of limitations, the illegalit}'- of the consideration of a 
 contract or any other matter, whereby he can prevent the collec- 
 tion of the debt, payment of which is asserted or demanded 
 against or from the estate which he represents. But long prior 
 to the enactment of this law by the legislature of Virginia, from 
 which ours is taken, the courts of that state, following those of 
 the mother country, decided that a personal representative must 
 plead the statute of limitations in all cases, to protect the de- 
 cedent's estate, for the benefit of other creditors, legatees or dis- 
 tributees of the decedent.^ So, too, debts whose consideration 
 was illegal or void could not be paid by a fiduciary before the 
 enactment of this statute, especially if there was anything ap- 
 parent in the contract to indicate its consideration, from which 
 its invalidity could be inferred or determined.' But the enact- 
 ment of this statute puts it beyond cavil that any fiduciary must 
 see that no debt is paid by him as such, that can be in any man- 
 ner defeated under the rules and principles of the law applicable 
 to the case. 
 
 § 153. The rendition and settlement of the accounts of 
 fiduciaries — 
 
 Our statute provides, as we have already in part shown,* that 
 a statement of all money which any personal representative, 
 guardian, curator or committee shall have received or become 
 chargeable with, or disbursed within one year from the date of 
 the order conferring his authority, or within any succeeding year, 
 together with the vouchers of such disbursements, shall, within 
 six months after the end of every such year, be exhibited by him 
 
 ' Meyer's Ex'r v. Zetelle, 21 Gratt. 733; Douglass v. Stephen's Executor 
 et al., 75 Va. 747; I^vett v. Thomas's Administrator, 81 Va. 245; Turpin et 
 al. V. Chesterfield C. & I. M. Co., 82 Va. 74; Elliott v. Carter etal., 9 Gratt. 
 541. See ante, J? no, 112, 113, 114. 
 
 » Tunstall et al. v. Pollard's Adm'r, 11 Leigh, 138. See ante, I 112. 
 
 ' Carter's Ex'rs v. Cutting, 5 Munf. 223. 
 
 *Ante, ii 114, 118, and post, ? 208. 
 
FIDUCIARIES. 243 
 
 before a commissioner of accounts in the county wherein the or- 
 der was made conferring his authority; and a statement of all 
 money which any trustee, other than a trustee acting under a 
 trust created to secure the payment of debts or to indemnify a 
 surety, shall have received or become chargeable with, or have 
 disbursed, within a year from the date of receiving any money 
 under the provisions of such trust, or within any succeeding 
 year, together with the vouchers for such disbursements, shall be 
 laid by him before a commissioner of accounts of the county 
 wherein the instrument creating the trust was first recorded; and 
 the said commissioner shall state, settle and report to the court or 
 clerk appointing him an account of the transaction of any such 
 fiduciary as provided by law. If any such fiduciary shall fail to 
 make such exhibit, the clerk of the county court, the commis- 
 sioners of accounts and the circuit court shall proceed against 
 him in like manner, and the court shall impose the same penalties 
 as are herein provided ^ in cases where fiduciaries fail to return 
 inventories of their respective estates.' 
 
 This statute lays down a summary and cumulative remedy 
 whereby the accounts of fiduciaries may be settled, and under it 
 may be briefly noticed the method of the settlement of these ac- 
 counts and the principles of law governing in such cases. 
 
 In the case of Burwell's Ex'rs v. Anderson's Adm'r,^ Tucker, 
 P., in the course of his opinion, says: "The question as to the 
 mode of settling executors' accounts arose out of the establish- 
 ment of a rule for the settlement of the accounts of debtor and 
 creditor, different from (what I will call) the ordinary mercantile 
 rule. The effect of the mercantile rule was to give interest upon 
 the payments as well as upon the debt. The operation of this 
 system is, in many cases, so obviously injurious to the creditor, 
 that it was rejected, and a new rule was established by Chancel- 
 lor Wythe, in the case of Ross v. Pleasants, etc. , which may be 
 called the court rule. It was that, which now universally pre- 
 vails, in calculating the balance due upon a bond, where partial 
 payments have been made, and it is that to which the court had 
 reference in Granberry v. Granberry.* From this decision these 
 ailes and principles are deduced: 
 
 "i. The various items of receipts on the one hand, and dis- 
 
 ' See ante, ? 150. ' Code, chap. 87, sec. 6. 3 3 Leigh, 359, 360. 
 
 « I Wash. 246. See ante, 114. 
 
244 EQUITY PRINCIPLES. 
 
 bursements on the other, in each current year, are not to be 
 treated as distinct items of account, but are to be added together 
 and considered as constituting a single item. 
 
 "2. Interest upon these balances is not to be carried to the suc- 
 ceeding year, so as to be set off against the disbursements in such 
 succeeding year; for, 
 
 "3. The important principle of the rule is that the payment or 
 disbursements shall always be first applied to discharge the prin- 
 cipal, so long as any principal remains unpaid, and shall never go 
 to discharge interest until the principal has been altogether paid 
 off. Hence, results the direction — 
 
 ' '4. That, instead of calculating interest upon the balances of 
 the year, and carrying it to the succeeding year (which is ex- 
 pressly forbidden), interest upon the respective balances are to 
 be calculated up to the close of the transaction, and then, and 
 not till then, brought into the general account with the prin- 
 cipal." 
 
 "If there be," says Mr. Barton, "no principal remaining due 
 to the estate, then and not till then the disbursements shall be 
 applied to the payment of any interest which may be due. And 
 if there be neither principal nor interest remaining due, interest 
 shall then be allowed upon such disbursements, unless it be ab- 
 sorbed by subsequent receipts, and, when the balance of prin- 
 cipal of any preceding year shall be thus distinguished, the in- 
 terest on such balance shall then cease. ' ' ^ 
 
 In stating the account it must be confined to receipts and 
 disbursements, and payments to legatees and advancements to 
 distributees should never enter into the general executorial ac- 
 count.^ 
 
 In the settlement of the accounts, when a day has once been 
 fixed upon as the time when the balance is struck, it should not 
 be changed, so as to thus avoid confusion. And it is to be no- 
 ticed that the charge of interest is not always to be confined to 
 the balance struck, for if large items of receipts or disbursements 
 occur early or late in the year, interest may be reckoned on the 
 disbursements from their date, and on receipts a sufficient time 
 thereafter to enable the fiduciary to invest the money.' 
 
 ' 2 Bart. Ch. Pr. 661. 
 
 '- Idem, 662, citing Hanna's Adm'r v. Boyd and Wife, 25 Gratt. 699. 
 
 s 2 Bart. Ch. Prac. 683. 
 
FIDUCIARIES. 245 
 
 As to the time at which guardians must pay interest, there can 
 be no discretion, as this is prescribed by statute.' As to other 
 fiduciaries, the time from which they are to be charged with in- 
 terest is left largely to the discretion of the court, the time being 
 governed by the circumstances of each case.'' 
 
 Where the accounts are only between the fiduciary and legatee, 
 the usual rule between debtor and creditor is strictly pursued, and 
 the ordinary charge is at the rate of six per cent, but there are 
 circurastances under which the court will exact a greater rate of 
 interest.' 
 
 The rule as to compound interest is fixed by statute as to 
 guardians,* but as to other fiduciaries, the rule is different, they 
 not being chargeable with compound interest except in cases of 
 flagrant abuses of their trust. ^ But compound interest will al- 
 ways be charged against fiduciaries who have used the funds of 
 the estate which they represent, in trade, and do not disclose 
 the profits;^ and it has been said that all fiduciaries, except per- 
 sonal representatives, will be charged with compound interest on 
 a mere failure to invest.' 
 
 "Whether after the accounts of an executor are closed, and a 
 balance is ascertained to be in his hands, he shall be charged 
 ■with interest on the aggregate of principal and interest thus 
 found to be due by him, has been declared to be a matter 
 upon which the courts have never laid down any fixed rule; 
 but it was further said that the court of appeals of Virginia 
 has not been favorably inclined to the charge of compound 
 interest against personal representatives except under very pecu- 
 liar circumstances.'" 
 
 Where it is necessary for the personal representative to keep 
 large sums of money in his hands to meet the exigencies of the 
 estate, as where the debts are in a speedy course of settlement, 
 or a suit is pending for that purpose, or to determine questions 
 touching the distribution of the estate, no interest will be 
 
 ' Code, chap. 82, sec. 12. See post, I 208. 
 
 ' 2 Bart. Ch. Prac. 684. ' Idem, 685. « Code, chap. 82, sec. 10. 
 
 s 2 Bart. Ch. Prac. 686. " Tdem. 
 
 1 Idem, 687, citing Crigler's Committee v. Alexander's Ex'or, 33 Gratt. 682. 
 
 * Idem., citing Chapman's Adm'r v. Shepherd's Adm'r et al., 24 Gratt. 
 388; Morris, Adm'r, v. Morris's Adm'r et als., 4 Gratt. 293; Peale v. Hickle 
 etals., 9 Gratt. 437. 
 
246 EQUITY PRINCIPI,BS. 
 
 charged the executor or administrator on such funds so held by 
 him.' 
 
 As we have already said,' the vouchers for the disbursements 
 must be laid before the commissioner; that is, there must be 
 satisfactory proof of the payment of the money by the fiduciary, 
 the usual form of which is the receipt of the person to whom the 
 money has been paid, but in small matters, such as postage, pay- 
 ments for menial services, railroad fare, and the like, the oath of 
 the fiduciary is sufficient.' 
 
 "Enough should appear on the receipt or be otherwise proved 
 to show for what and to whom the payment was made, and that 
 it was of a character to be properly allowed. Thus it is con- 
 sidered that while a mere indorsement upon the evidence of debt 
 which was signed by the testator is proof sufficient, a receipted ac- 
 count in order to be admitted as a proper voucher must be sup- 
 ported by the affidavit, or perhaps merely by the oath, of the 
 creditor, or some one for him." * The voucher or other evidence 
 remaining with the commissioner, at the time of the confirmation 
 of the report, and not wanted for any further matter of inquiry 
 before him, shall be returned by him to the party who filed the 
 
 § 154. The penalty for the failure of a fiduciary to settle 
 his accounts as required by law — 
 
 As we have already seen,' a fiduciary who fails to lay his ac- 
 counts before a commissioner as required by the code, the section 
 relating to which we have just been considering, forfeits his com- 
 missions as a penalty for thus violating the statute.' When any 
 fiduciary accoimt is settled in a suit, it shall be the duty of the 
 clerk of the court in which said suit is, as soon as may be after a 
 final decree has been entered therein, to certify to the clerk of 
 the court wherein such fiduciary qualified that the account of 
 such fiduciary has been settled in such suit, giving the style of 
 the suit and the date of the final decree in such suit. The derk 
 receiving such certificate shall record the same in the same book 
 in which the reports of the commissioners upon accounts settled 
 by them are reported.' 
 
 ' Idem, 687. See also ante, \ 14, pp. 179-181. » Ante, § 153, page 243. 
 
 3 2 Bart. Ch. Prac. 681. < Idem, 682. s Code, chap. 87, sec. 21. 
 
 ' Ante, l\ 118, 153. ^ See anU, § 118. » Code, chap. 87, sec. 7. 
 
FIDUCIARISS. 247 
 
 When any fiduciary shall have so failed to lay before such com- 
 missioner of accounts a statement of his receipts for any year, a 
 commissioner before whom the said statement might have been 
 laid, shall, upon request made to him, within ten years from the 
 commencement of such year, by any person who is interested as 
 creditor, distributee or otherwise, or who appears as next friend of 
 an infant so interested, issue a summons directed to the sheriff or 
 other officer of any county, requiring him to summon such fidu- 
 ciary to lay before the commissioner a statement of his receipts 
 and disbursements, accompanied by his vouchers for such year, 
 and for the time which may have since elapsed. If the same be 
 not, within one month after the service of such summons, laid 
 before the commissioner who issued it, he shall, on being re- 
 quested so to do, report the fact to the circuit court of his county, 
 which shall proceed against such fiduciary in like manner and 
 impose the same penalty as is herein provided ' in cases where 
 fiduciaries fail to return inventories of their respective estates.' 
 
 § 155. Bond of fiduciary to be reported on by a com- 
 missioner — 
 
 "When any personal representative, guardian, curator, or com- 
 mittee, except a sheriff or other officer, shall have laid such state- 
 ment before a commissioner of accounts, he shall examine whether 
 said fiduciary has given bond as the law requires, and whether it 
 is in a penalty and with sureties sufficient. The commissioner 
 of accounts of the county in which the order was made confer- 
 ring on said fiduciary his authority, shall at any time before such 
 statement is laid before a commissioner, upon the application of 
 any person who is interested or appears as next friend of an in- 
 fant interested, after reasonable notice to such fiduciary, examine 
 into any of said matters, or inquire whether by reason of the in- 
 capacity, misconduct or removal of any fiduciary, or for any other 
 cause, it is proper to permit the estate of the decedent, ward or 
 other person to remain under his control. The result of every 
 such examination and inquiry shall be reported by him to the 
 court by which he is appointed." ' 
 
 » Sec ante, \ 150. » Code, chap. 87, sec. 8. Idem, sec. 9. 
 
248 EQUITY PRINCIPLES. 
 
 § 156. Order annulling and revoking the po^vers of a 
 fiduciary — 
 
 Whenever any fiduciary fails to give a new bond when required 
 so to do, or whenever from any cause it appears proper, the court 
 may revoke and annul the powers of any fiduciary. But no order 
 revoking his powers shall be made, unless reasonable notice ap- 
 pear to have been given to such fiduciary by the commissioner 
 who reported relative to the conduct of such fiduciary, or by the 
 service of a rule or otherwise.^ 
 
 After the date of any order revoking and annulling the powers 
 of any fiduciary, the court in which he qualified, shall exercise 
 such jurisdiction either by appointing an administrator de bonis 
 non, or a new guardian, or otherwise, as it could have exercised 
 if the said fiduciary had died at that date.'' 
 
 If it be shown that the fiduciary is unfit for the trust, the court 
 may appoint a receiver to take charge of the property, pending a 
 suit in reference thereto and for an accounting.^ 
 
 § 157. The giving of a new bond by a fiduciary and the 
 effect thereof — 
 
 It is provided in the Code that ^the court under whose orders 
 any fiduciary derives his authority, when it appears proper on 
 the report of the clerk or commissioner, or on evidence adduced 
 by a surety or the representative of a surety for such fiduciary, 
 or by any other person interested, may, at any time, whether 
 such fiduciary shall or shall not have before g^iven any bond, or 
 whether he shall have given one with or without sureties, order 
 him to give before such court a new bond within a prescribed 
 reasonable time, in such penalty, and with or without sureties, 
 as may appear proper.* 
 
 Every bond executed with sureties under either sections nine 
 or ten of chapter eighty-seven of the Code shall, without any ex- 
 press provision therein to that effect, relate back to the time of 
 the qualification of the fiduciary and bind the obligors therein for 
 the faithful discharge of the duties of his office or trust from that 
 time, as effectually as if it had then been executed, and the sure- 
 ties in the former bond and their representatives shall, upon the 
 execution of such new bond, be forthwith discharged, except as 
 
 ' Code, chap. 87, sec. 10. ' Code, chap. 87, sec. 12. 
 
 3 Sage V. Hammond, 27 Gratt. 651. « Code, chap. 87, sec. 10. 
 
FIDUCIARIBS. 249 
 
 to any matter for whicli a suit may be then pending on t'ne 
 former bond against any such sureties or their representatives, 
 in which case suit may be prosecuted to judgment or decree; but 
 as to every such matter the new bond shall without any express 
 provisions therein to that effect, bind the obligors therein to in- 
 demnify the sureties in the former bond against all loss or dam- 
 age in consequence of executing the former bond/ 
 
 § 158. Commissioner's duty and procedure in reference 
 thereto, as to accounts of fiduciaries before him 
 for settlement — 
 
 "Any commissioner who has for settlement the accounts of a 
 decedent shall, when requested to do so by such personal repre- 
 sentative, or any creditor, legatee or distributee of the decedent, 
 who shall advance an amount sufi&cient to pay for the publication 
 hereinafter required, appoint a time and place for receiving proof 
 of debts or demands against the said decedent or his estate, and 
 before the said time publish a notice of such time and place once 
 in each week for six successive weeks in some newspaper in the 
 county, or if there be none such, then in some newspaper of gen- 
 eral circulation therein, and post copies of such notice at the 
 front door of the courthouse of the county, and if the decedent 
 was a resident of the state, at five of the most public places in the 
 county where he resided at the time of his death, at least siJ.: 
 weeks before the time appointed for receiving proof as afore- 
 said."* 
 
 The commissioner may adjourn from time to time for receiv- 
 ing proof, and shall within one year from the time first appointed, 
 make out an account of all such debts or demands as may be suffi- 
 ciently proved, stating them of each class separately.' 
 
 Every commissioner of accounts shall once a week for two suc- 
 cessive weeks preceding each term of the county court of his 
 county, advertise in some newspaper published in his county (if 
 there be one which will pubhsh such advertisement for the 
 ' compensation hereinafter provided) , a list of the fiduciaries whose 
 accounts are at the date of such list before him for settlement, al- 
 though they may have been mentioned in one or more lists pre- 
 viously published and posted by him, stating the names of such 
 
 ' Idem, sec. 11. See Perry v. Campbell, 10 W. Va. 228. 
 = Code, chap. 87, sec. 13, ^ Idem, sec, 14, 
 
250 BQUITY PRINCIPLES. 
 
 fiduciaries, the nature of their accounts, whether as personal 
 representative, guardian, curator, committee or trustee, and the 
 names of their decedents, or of the persons for whom they are 
 guardians, curators or committees, or under whose deed or other 
 instrument of trust they are acting. The said commissioner 
 shall also on the first day of such term of the county court, post 
 a duplicate of said list at the front door of the courthouse of his 
 county. No account of any fiduciary shall be completed by any 
 commissioner until it shall have been mentioned in such list, nor 
 for ten days after the first day of such term of the county court. 
 Any commissioner of accounts who fails to publish and post such 
 list shall be fined twenty dollars. The advertisements herein 
 provided for shall be paid for at a price not exceeding fifty cents 
 for each fiduciary named in the list, out of the funds in his hands 
 as such fiduciary.^ 
 
 When a commissioner has before him for settlement the ac- 
 counts of a fiduciary for any year, if there be any time prior to 
 such year for which the fiduciary has not settled, the settlement 
 shall also be for such time. Any person who is interested or ap- 
 pears as next friend for another interested in any such account 
 may, before the commissioner, insist upon or object to anything 
 which could be insisted upon or objected to by him, or for such 
 other, before a commissioner acting under an order of a court of 
 chancery for settlement thereof, made in a suit to which he or 
 such other was a party.' 
 
 The contest and objections that may be made here are the same 
 as those that may be made before a master commissioner to whom 
 a cause has been referred to take and state an account. In such 
 case the statute of limitations may be relied on before the com- 
 missioner, even where it has not been pleaded before the court 
 prior to the order of reference.' And the creditors themselves 
 may appear before such commissioner and contest the claims 
 of each other; and the creditors may rely upon the statute of 
 limitations before such commissioner as to the claims of one 
 another.* 
 
 Every account stated under chapter eighty-seven of the Code 
 shall be reported with any matters specially stated, deemed per- 
 tinent by the commissioner, or which may be required by any 
 
 ' Idem, sec. 15. ' Idem, sec. 16. ' Woodyard v. Polsley, 14 W. Va. 211. 
 * Woodyard v. Polsley, supra. 
 
PIDUCIARIBS. 251 
 
 person interested to be so stated.^ Sucli report shall remain in 
 the commissioner's office for ten days after it is completed, during 
 which time any person interested may inspect the same and file 
 exceptions thereto.' The commissioner shall file the report in the 
 office of the court by which he is appointed, as soon as practica- 
 ble after the expiration of the said ten days, and with his report 
 shall return the said exception, with such remarks as he may see 
 fit to make, and such of the vouchers or evidence before him as 
 any person interested may desire him to return, or as he may 
 deem proper.' 
 
 § 159. The duty of the court as to the report of a commis- 
 sioner settling the accounts of a fiduciary. 
 
 The court, at its first term after the report of the commissioner 
 stating the account of any fiduciary may have been filed in the 
 office of its clerk, shall examine the same, with such exceptions 
 thereto as may be filed at any time before such examination. It 
 shall correct any error that may appear on the exceptions, and 
 any appearing on the face of the accounts, whether excepted to 
 or not; and to this end may re-commit the report to either of the 
 commissioners of accounts, as often as it sees cause, or it may 
 confirm it in whole or in a quaHfied manner. The clerk shall, 
 in a book kept for the purpose, record every report which may 
 be so confirmed, and at the foot of it the order of confirmation.* 
 
 § 160. Surcharging and falsifying the accounts of a fidu- 
 ciary. 
 
 What has already been said with reference to surcharging and 
 falsifying the accounts of executors and administrators,* applies 
 to the accounts of all other fiduciaries, so that what is said here 
 will simply be in addition to what has been said there. 
 
 The terms, "surcharge" and "falsify," are given a distinct 
 meaning in the vocabulary of a court of equity, somewhat differ- 
 ent from that which they bear in the ordinary language of com- 
 mon life. A surcharge is properly applied to the balance of the 
 whole account; and supposes credits to be omitted, which ought 
 to be allowed. A falsification applies to some item in the debits; 
 
 ' Code, chap. 87, sec. 18. See, also, post, \ 458. 
 
 • Code, chap. 87, sec. 19. ' Idem, sec. 20. ♦ Idem, sec. 21. 
 
 i Ante, \ 119, p. 197- 
 
252 EQUITY PRINCIPLES. 
 
 and supposes that the item is wholly false, or, in some part, 
 erroneous.^ 
 
 As we have seen,' the account of a fiduciary reported and con- 
 firmed by the court is treated as prima facie correct, and will not 
 be disturbed except in the particulars specified and proved to be 
 erroneous. This rule or principle rests, not on the ground that 
 such audited accounts stand upon the same ground as stated ac- 
 counts between the parties, but mainly on the long-established 
 practice of the country, and on the supposed integrity of the tri- 
 bunal provided by law for the adjustment thereof.' 
 
 It matters not that great and numerous errors appear, or even 
 though the fiduciary appears to have taken an unfair advantage, 
 and though he did not return any inventory and appraisement 
 to the court, or exhibit any to the commissioner, the accounts 
 are yet to be treated as in all respects correct only so far as they 
 are surcharged and falsified by proof.* And the errors com- 
 plained of must be set forth in the bill, unless additional ones are 
 discovered during the progress of the cause, when the plaintiff 
 may raise the objection before the commissioner, with a proper 
 specification in writing, whereupon the defendant may meet the 
 objection by affidavit, which shall have the same weight as an 
 answer would have, had the matter been alleged in the bill in the 
 first instance.'' 
 
 If a fiduciary has settled his accounts in a suit inter partes, and 
 his settlement is duly reported to the court in which the cause is 
 pending and confirmed, such settlement cannot afterwards be 
 disturbed except for errors apparent upon the face of the account 
 or for after discovered evidence.' 
 
 It has elsewhere been stated ' that there is no statutory bar to 
 a suit to surcharge and falsify the accounts of a fiduciary. 
 While this is true, the language of the statute indicates that the 
 law-making power contemplated some limit of time within which 
 a bill of this character should be filed. Therefore we may safely 
 say that long lapse of time, unaccompanied by any satisfactory 
 explanation for the delay, or any sufficient excuse, will operate 
 
 ■ 1 Story, Eq. Jur., I 525. • Ante, § 119, p. 197. 
 
 3 Newton v. Poole, 12 Leigh, 112. < Newton v. Poole, supra. 
 
 ! Corbin et al. v. Mill's Ex'rs et al., 19 Gratt. 438. 
 
 « Radford v. Polkes, 85 Va. 820; s. c. 8 S. E. Rep. 817. 
 
 ' Ante, \ 119, page. 197. 
 
FIDUCIARIES 253 
 
 to protect the accounts of a fiduciary, the filing of a bill, or 
 rather the maintenance of a suit to surcharge and falsify such 
 accounts, the length of time sufficient for this purpose depending 
 upon the circumstances of each particular case.' 
 
 § 161. When a court will order the funds in the hands of a 
 fiduciary, after the coming in of the report of a 
 commissioner, to be invested — 
 
 When it appears by a report, as hereinbefore stated,^ 
 or a special report of the commissioner of accounts that 
 money is in the hands of any fiduciary mentioned in chapter 
 eighty -seven of the Code, the court before which the report so 
 comes may order the same to be invested or loaned out, 
 or make such other order respecting the same as may seem to 
 it proper.' 
 
 § 162. Disposal of securities standing in the name of a 
 fiduciary upon his death, or v^hose po^vers have 
 been revoked — 
 
 When any securities for money loaned or invested shall be 
 standing in the name of any fiduciary who shall have died, or 
 whose power shall have been revoked, and such fiduciary or his 
 personal representative shall not have transferred such securities 
 to his successor, the county court of the county in which such 
 fiduciary shall have qualified, upon the petition of such successor, 
 or of any other person interested, may direct such securities to be 
 transferred to such successor, and may direct the dividends, in- 
 terest or proceeds of the said securities to be received or paid in 
 such manner as the said court shall think proper.* 
 
 § 163. Power and duty of the court after the confir- 
 mation of the report of the accounts of any 
 fiduciary — 
 
 When a court shall have confirmed either in whole or in a 
 qualified manner, a report of the accounts of any guardian, cura- 
 tor, committee, or trustee, such court may order payment of what 
 
 ' Bvirwell's Ex'rs v. Anderson, Adm'r, 3 Leigh, 353, 354; Coleman v. 
 Lyne's Executor, 4 Call, 454. 
 » See ante, ?? 154, 158, i59- ' Code, chap. 87, sec. 23. * Idem, 24. 
 
254 EQUITY PRINCIPI,ES. 
 
 shall appear due on such accounts, to such persons as would be 
 entitled to recover the same by suit in equity.* 
 
 When a court shall have so confirmed a report of the accounts 
 of any personal representative, and of the debts and demands 
 against his decedent's estate, it shall order to be applied to the 
 payment of such debts and demands, so much of the estate in the 
 hands of such representative and to such creditors as shall ap- 
 pear proper, reserving when it seems to the court reasonable to 
 do so, to meet a claim of a surety for the decedent, or any other 
 contingent claim against the estate, the proof of which has to be 
 deferred, or to meet any other claim not finally passed upon, such 
 as may be deemed sufficient to pay it, or a portion thereof equal 
 to what is ordered to be paid to other creditors of the same class, 
 ^ould the payment of it, or of such portion afterwards appear 
 proper.' 
 
 Upon any such claim being allowed, subsequent to any divi- 
 dend, there shall be ordered to be paid out of the estate remain- 
 ing in the hands of a representative, or under the control of the 
 court (without regarding any debts of superior dignity, for which 
 there may have been no such reservation), the amount of such 
 claim or a portion thereof, equal to what shall have been paid to 
 the creditors of the same class, if there be enough remaining to 
 pay the same or such portion, but the former dividend shall not 
 be disturbed.' 
 
 When at the time of any dividend the whole assets are not dis- 
 tributed, or where further assets afterwards come to the hands 
 of the personal representative, if after paying such proportion as 
 is mentioned in the preceding section, or any claim allowed sub- 
 sequent to such dividend, there remain a surplus, it shall be di- 
 vided among all the creditors who shall have proved debts and 
 demands against the decedent's estate in the order and propor- 
 tion in which they may be entitled.* 
 
 § 164. How payment of legacy, or share of distributee, by 
 a personal representative may be enforced by 
 the court — 
 
 When a report of the accounts of any personal representative, 
 and of the demands and debts against his decedent's estate, shall 
 have been filed in the office of a court under chapter eighty-seven 
 
 » Idem, sec. 25. = Idem, sec. 26. 3 Idem, sec. 27. < Idem, sec. 28. 
 
FIDUCIARIES. 255 
 
 of the Code, the said court, after two years from the qualification 
 of such personal representative, may, on the motion of a legatee 
 or distributee of his decedent, make an order for the creditors of 
 such decedent to show cause, on some day to be named in the 
 order, against the payment and delivery of the estate of the de- 
 cedent to his legatee or distributee, copies of which order shall be 
 posted and published in the same manner and for the same time 
 as is provided in section thirteen of chapter eighty-seven of the 
 Code, with respect to the notice for the time and place for proof 
 of debts. ^ On or after the day named in the order, the court may 
 order the payment and delivery to the legatees or distributees of 
 the whole, or a part of the money and other estate, not before 
 distributed, with or without a refunding bond, as the court may 
 prescribe. But every legatee or distributee, to whom any such 
 delivery or payment is made and his representatives, may, in 
 a suit brought against him, within five years afterwards, be 
 adjudged to refund a due proportion of any debts or demands ap- 
 pearing against the decedent, and of the costs attending their re- 
 covery.' 
 
 § 165. Ho'W the order of court as to matters concerning 
 fiduciaries may be enforced — 
 If any order made by the county court under sections twenty- 
 three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty- 
 eight, twenty-nine and thirty-one of chapter eighty-seven of the 
 Code,^ be not complied with, any person interested may bring a 
 suit in chancery in the circuit court of the county wherein such 
 order was made, to compel compliance therewith. In such suit 
 such order shall be taken as prima fade correct, and there shall 
 be a decree according to said order, except so far as it may ap- 
 pear upon proper pleadings and proofs to be erroneous. If any 
 fiduciary make any payment in accordance with such order 
 of the county court more than three months after such order was 
 made, and before suit shall have been commenced under section 
 thirty-two of chapter eighty-seven of the Code, such payment 
 shall not be disturbed, nor shall such fiduciary be in any wise 
 Hable with respect thereto.* 
 
 » See anU, \ 158. = Code, chap. 87, sec. 31. 
 
 3 See ante, ?? 161, 162, 163 and 164. * Code. chap. 87, sec, yi 
 
256 BQUITY PRINCIPLES. 
 
 CHAPTER XVII. 
 
 FRAUD. 
 
 J 166. Definition and kinds of fraud. 
 
 167. Equity jurisdiction in matters of fraud. 
 
 168. What misrepresentations amount to fraud. 
 
 169. The expression of mere matters of opinion will not be treated as 
 
 fraud. 
 
 170. When concealment amounts to fraud. 
 
 171. Fraud arising from contracts made with persons of weak or disor- 
 
 dered intellect, or laboring under any form of mental incapacity. 
 
 172. The classification of constructive fraud. 
 
 173. Acts treated as fraudulent because against public policy. 
 
 174. Constructive frauds which arise from the abuse of some- peculiar, 
 
 confidential or fiduciary relation existing between the parties. 
 174a. Constructive frauds as being unconscietitious or injurious to the 
 rights of third parties. 
 
 175. Cases illustrative of fraud. 
 
 176. Right to rescind for fraud must be exercised within a reasonable 
 
 time. 
 
 177. The allegations in the bill to rescind an instrument on the ground of 
 
 fraud. 
 
 178. Relief against judgments and decrees in equity on the g[round of 
 
 fraud. 
 
 179. Defense to the charge of fraud. 
 
 180. Of the evidence necessary to sustain the charge of fraud. 
 
 § 166. Definition and kinds of fraud — 
 
 Owing to the numberless phases which fraud may assume, courts 
 of equity have been unable to lay down any rules exactly defin- 
 ing the Umits to which they will go in affording relief against it;* 
 but equitable principles can be applied to every case of fraud as 
 it arises, however novel its features or new the circumstances by 
 which it is surrounded.' The most usual classification of fraud 
 divides it into two distinct sorts — actual or positive and con- 
 structive.' 
 
 ■ Snell's Prin. Eq. 382; Meldrum v. Meldrum, 15 Colo. 478; s. c. 11 Iv. R. 
 A. 65, But see ante, I 48. 
 
 " Meldrum v. Meldrum, supra. See ante, I 48. 
 
 3 I Story's Eq. Jur., ?§ 184, 258; Snell's Prin. Eq. 383; Haynes, Outlines 
 of Equity, 127, 130. 
 
FRAUD. 257 
 
 "Where a party intentionally or by design misrepresents a ma- 
 terial fact, or produces a false impression in order to mislead an- 
 other, or to entrap or cheat him, or to obtain an undue advan- 
 tage of him, in such case there is a positive fraud. And the 
 misrepresentation may be as well by deeds or acts as by words, 
 by artifices to misled as well as by positive assertions. ' ' ^ 
 
 An actual fraud may be defined as something said, done or 
 omitted with the design of perpetrating what the party must have 
 known to be a positive fraud,'' and in the vast majority of in- 
 stances occurs in negotiations or dealings which are incidents of 
 some agreement, executed or executory;' and in its intrinsic na- 
 ture may be reduced to two essential forms — false representation 
 and fraudulent concealment.* 
 
 By constructive frauds are meant such acts or contracts as, al- 
 though not originating in any actual design or contrivance to 
 perpetrate a positive fraud or injury upon other persons, are yet, 
 by their tendency to deceive or mislead other persons, or to vio- 
 late private or public confidence, or to impair or injure the 
 public interests, deemed equally reprehensible with positive 
 fraud, and therefore are prohibited by law as being acts and con- 
 tracts done malo animo? 
 
 Constructive fraud is sometimes called legal fraud, and the 
 touchstone by which legal is distinguished from actual fraud is 
 the presence or absence of an intention to deceive} 
 
 § 167. Equity jurisdiction in matters of fraud — 
 
 It is said that courts of law and equity have concurrent juris- 
 diction in all cases of fraud.' 
 
 A modem author of considerable repute, following all other 
 writers on the subject of the jurisdiction of courts of equity in 
 matters of fraud, says that the cotuls of law and equity have 
 concurrent jurisdiction in all cases of fraud, with the single ex- 
 
 ' Dickinson v. Railroad Co., 7 W. Va. 390, 3Q2. 
 
 » Snell's Princ. Eq. 383. 384- 
 
 3 2 Pom. Eq. Jut. (2d. ed.), ? 875. < Idem. 
 
 » Snell's Princ. Eq. 398. 
 
 ' Schwartzbach v. Protective Union, 25 W. Va. 622. See also the case of 
 Crislip, Guardian, v. Cain, 19 W. Va. 438. See further, ante, § 38/. 
 
 ' White V. Jones, 4 Call, 253; Garland v Rives, 4 Rand. 282, 307; Story, 
 Eq. Jur. 184; Kelly v. Riley, 22 W.^Va. 24.7. 
 
 17 
 
258 BQTJITY PRINCIPLES. 
 
 ception of questions of fraud relating to the execution or probate 
 of wills, and that as to this single subject it never has had juris- 
 diction.^ He says the most important consideration in this con- 
 nection is whether the party should seek redress in a court of 
 law. "But it is to be remembered that the courts of law exer- 
 cise jurisdiction in cases of fraud by a gradual extension of their 
 powers, and that this does not deprive the courts of equity of 
 their ancient jurisdiction which they exercised before the courts- 
 of law enlarged their limits." ' 
 
 In this state,. by virtue of statute,' a court of equity may take 
 jurisdiction of the matter pertaining to wills, their probate and 
 execution; but the issue of will or no will must be tried by a 
 jury, if desired by either party.* 
 
 In Garland v. Rives, the court says that in all cases of actual 
 fraud a court of equity has a concurrent jurisdiction with a court 
 of law, in remedying the fraud; and the remedy in equity is- 
 frequently more beneficial than at law, by means of its pow- 
 ers to compel discovery, and to cause fraudulent deeds and se- 
 curities to be canceled, or conveyances to be made; thus effectu- 
 ally putting an end to future litigation.' 
 
 § 168. \Vhat misrepresentations amount to fraud — 
 
 One of the largest class of cases of actual fraud wherein courts- 
 of equity are called upon to grant relief is where there has been 
 a misrepresentation, or suggestio falsi} 
 
 That a misrepresentation may be made the subject of equitable- 
 cognizance, it must not be about a trifling or immaterial thing, nor 
 vague and inconclusive in its nature, nor a mere matter of opin- 
 ion, nor about a fact equally open to the inquiry of either party, 
 in regard to which neither could be presumed to trust the other;; 
 and even when the misrepresentation is material and not vague, 
 in order to amount to fraud, as we have already seen,' it must 
 have been relied upon by the other party, who must have beea 
 misled thereby to his injury.* 
 
 » I Beach, Mod. Eq. Jur., \\ 65, 66. = Idem. 3 gee Ante, \ 48. 
 
 « See Ch. XI,, relating to Wills, \\ 42^, etc. s 4 Rand. 282, 307. 
 
 « Snell's Princ. Eq. 384; i Story, Eq. Jur., ? 191. ^Anie, ? 52. 
 
 8 Wamsley v. Currence, 25 W. Va. 543; Max Meadows Land and Improve- 
 ment Co. V. Brady, 92 Va. 71; s. c. 22 S. E.' Rep. 845; Lake v. Tyree, 90 Va. 
 719; s. c. 19 S. E. Rep. 787; Crislip v. Cain, 19 W. Va. 438, 439; Finlayson. 
 
FRAUD. 259 
 
 In Pennybaker v. lYaidley, cited in the foot-note, the court 
 holds, that ' 'one of the fundamental principles in regard to fraud 
 is that the false statement must be believed by the party to whom 
 addressed; otherwise, however false, or however fraudulent, the 
 intent, the false statement does not constitute any ground for the 
 rescission of a contract;" in other words, there is no fraud in 
 the absence of this essential element of the party's reliance upon 
 the false statement. 
 
 The intent or motive which actuates the misrepresentation, is 
 immaterial, so far as a right to relief in equity is concerned. The 
 misrepresentation may have taken place, or have been made with 
 no intention to deceive. It is sufficient if it was relied on by the 
 party to whom it was made, and induced his action.^ Nor does it 
 matter whether the party making the statements relied upon by 
 the other had any knowledge as to the matter concerning which 
 he makes the misrepresentation.' 
 
 It is immaterial whether the statements are made innocently or 
 Jknowingly. It is as fraudulent to affirm the existence of a fact 
 about which one is in ignorance as it is to affirm what is false, 
 knowing it to be so.' 
 
 If the party has no actual knowledge touching the matter to 
 
 V. Finlayson, 17 Oreg. 347; s. c. 3 L. R. A. 801; Dawe v. Morris, 149 Mass. 
 188; s. c. 21 N. E. Rep. 313; Chattam Furnace Co. v. Moffatt, 147 Mass. 403. 
 s. c. 18 N. E. Rep. 168; Craig v. Hamilton, 118 Ind. 565; s. c. 21 N. E. Rep. 
 315; Schumaker v. Mather, 133 N. Y. 590; s. c. 30 N. E. Rep. 755; Nichols v. 
 Colgan, 130 Ind. 341; s. c. 30 N. E. Rep. 301; Hexter v. Bast, 125 Pa. St. 52; 
 s. c. 17 Atl. Rep. 252; Pennybaker v. Laidley, 33 W. Va. 624, 11 S. E. 
 Rep. 39. 
 
 ' O'Donnell v. Town of Clinton, 145 Mass. 461; s. c. 14 N. E. Rep. 747; 
 Billings V. Aspen Mining and Smelting Co., 2 C. C. A. (U. S.) 252; s. c. 51 
 Fed. Rep. 338. 
 
 » McKinnon v. VoUmar, 75 Wis. 82; s. c. 6 L. R. A. 121. 
 
 ■s Bullitt V. Farrar, 42 Minn. 8; s. c. 6 L. R. A. 149; Linhart v. Foreman, 
 77 Va. 540. In this last case, the court says; "A false representation of a 
 material fact constituting an inducement to the contract, on which the pur- 
 chaser had a right to rely, is a ground for the rescission of the contract by 
 a court of equity, although the party making the misrepresentation was ig- 
 norant as to whether it was true or false; and the real inquiry is, not whether 
 the vendor knew the representation to be false, but whether the purchaser 
 believed it to be true and was misled by it into the contract. In such case, 
 whether the false representation was innocently or willfully made, the effect 
 is the same on the purchaser." 
 
26o EQUITY PRINCIPLES. 
 
 which the statements relate, and has relied upon them, his action 
 can not be defeated because the fact in question is matter of pub- 
 lic record.^ 
 
 § 169. The expression of mere matters of opinion will not 
 be treated as fraudulent — 
 
 It is well settled that a misrepresentation in order to constitute 
 fraud must be an aflBrmative statement of some material fact, and 
 not a mere expression of opinion.' 
 
 "A mere expression of opinion upon matters contingent or im- 
 certain will not support an action for fraud, however fallacious 
 such opinion may prove, or however great an injury a reliance 
 upon it may produce." ' The reason a party has no right to rely 
 upon an opinion, so as to charge the opposite party with fraud, 
 is that it will be assumed that the party to whom it is addressed 
 has the ability and opportunity of forming his own opinion and 
 coming to an independent judgment for himself} But, on the 
 other hand, if the party making the false statements as to a 
 matter conjectural in its character, and therefore relating to a 
 matter of opinion, actively intervene to prevent investigation and 
 the discovery of the truth, and such intervention be effective in 
 the concealment of the facts and in the deception of the other 
 party, a clear case of operative fraud is made out. In every 
 puch case immunity will not be extended to false expressions of 
 opinion, upon the ground of "puffing" or "trade talk," if it ap- 
 pear that the party making them has, by his conduct, prevented 
 investigation and induced reliance upon them.* 
 
 Thus, if a vendor makes a representation as to the market 
 value of land, knowing that the vendee has not seen it, and in- 
 duces the vendee to rely upon the statements made, and to make 
 no examination of the land, he is guilty of a fraudulent misrep- 
 resentation within the rule as recognized by courts of equity.* 
 
 ' Backer v. Pyne, 130 Ind. 288; s. c. 30 N. B. Rep. ar. 
 
 ' Gordon v. Butler, 105 U. S. 533; Development Co. v. Silva, 125 U. S. 
 247; 8 Sup. Ct. Rep. 881; Mudsill Min. Co. v. Watrous, 9 C. C. A. (U. S.) 415. 
 
 3 8 Wait's Act. & Def. 275, citing Union Bank v. Hunt, 76 Mo. 439; Van- 
 Vechtan v. Smith, 59 Iowa, 173; Gordon v. Butler, 105 U. S. 553; Cooper v. 
 Schlesinger, in U. S. 148; Horrigan v. First Bank, 9 Baxter (Tenn.), 137- 
 Banta v. Savage, 12 Nev. 151; 3 Wait's Act. & Def. 435. 
 
 < Mudsill Min. Co. v. Watrous, supra. 
 
 s Mudsill Min. Co. v. Watrous, supra; 8 Wait's Act. & Def. 276. 
 
 ' 8 Wait's Act. & Def. 276, citing Bacon v. Frisbie, 15 Hun. (N. Y.) 26. 
 
FRAUD. 261 
 
 But, on the other hand, a mere opinion as to the law, or the legal 
 effect of an instrument, cannot be treated as a fraudulent mis- 
 representation . ' 
 
 § 170. W^hen concealment amounts to fraud — 
 
 The cases wherein questions relating to the concealment of 
 material and important facts usually arise, are those involving 
 the purchase or sale of property, real or personal, as an examina- 
 tion of the adjudged cases and authorities will disclose. And 
 here our supreme court has laid down the rule in clear and un- 
 mistakable language, that where parties deal at arms-length, and 
 there is no confidential or fiduciary relation between them, mere 
 silence on the part of the purchaser of realty, or failure to dis- 
 close knowledge on his part of a peculiar value affecting the 
 property, or the title thereto, is not sufficient to set aside a sale 
 fairly made, and which is otherwise unimpeachable.^ So, too, on 
 the other hand, where the purchaser is under the impression (not 
 created by anything said or done by the vendor) that the 
 land he is about to purchase possesses a peculiar value by 
 reason, for instance, of rich deposits of mineral thereunder, the 
 owner or vendor is under no obligations to inform him that he is 
 mistaken in this regard, although the owner may know that he 
 is laboring under a mistake touching this feature of his purchase.' 
 But the rule here laid down relates to passive silence alone, and 
 not to active concealment, as where one knows of a matter 
 greatly affecting the value of property, and says or does anything 
 concealing the fact, and thereby induces a bargain or sale, which 
 otherwise would not have been made.* And if there is any con- 
 fidential or fiduciary relation existing between the parties there 
 can be no valid sale or purchase without a full disclosure of all 
 the facts and circumstances within the knowledge of the fidu- 
 ciary, in anywise calculated to affect or enhance the price or 
 value of the subject-matter of the contract or bargain and sale.^ 
 
 ' 'Among this class of cases are to be found those which arise 
 from the relation of client and attorney, principal and agent, 
 principal and surety, landlord and tenant, parent and child, 
 
 ' Idem. » Pennybaker v. Laidley, 33 W. Va. 624; s. c. 11 S. E. Rep. 39. 
 1 Idem, page 43. ■• Bank v. Campbell, 75 Va. 455. 
 
 5 Moseley's Aam'rs v. Buck & Brander, 3 Munf. 232; Fetter on Equity, 
 138, 139; Allen V. Jackson, 122 111. 507, 13 N. E. Rep. 840. 
 
262 BQUITY PRINCIPIvBS. 
 
 guardian and ward, ancestor and heir, husband and wife, trustee 
 and cestui que trust, executors or administrators and creditors, 
 legatees, or distributees, appointor and appointee under powers, 
 and partners and part-owners. In these, and the like cases, the 
 law, in order to prevent undue advantage, from the unlimited 
 confidence, affection or sense of duty which the relation naturally 
 creates, requires the utmost degree of good faith {uberissima 
 fides') in all transactions between the parties. If there is any 
 misrepresentation, or any concealment of a material fact, or any 
 just suspicion of artifice or undue influence, courts of eqioity will 
 interpose, and pronounce the transaction void, and, as far as pos- 
 sible, restore the parties to their original rights." * 
 
 And in all cases of the sale of personal property it is an im- 
 plied warranty that the title thereto is in the vendor; so that, if 
 the seller should be silent as to such matter, and it should turn 
 out that he had no title to the property at the time of the sale, 
 such silence is a fraud upon the purchaser, against which equity 
 would relieve." 
 
 So, ' 'if a vendor should sell an estate, knowing that he had no 
 title to it, or knowing that there were incumbrances on it, of 
 which the vendee was ignorant, the suppression of such a ma- 
 terial fact, in respect to which the vendor must know, that the 
 very purchase implied a trust and confidence on the part of the 
 vendee, that no such defect existed, would clearly avoid the sale 
 on the ground of fraud." ' 
 
 The same doctrine applies to the sale of a house situate in a 
 distant place, which the vendor knows at the time of the sale to 
 be burnt down, but of which fact the vendee is ignorant.* 
 
 § 171. Fraud arising from contracts made with persons of 
 weak or disordered intellect, or laboring under 
 any form of mental incapacity — 
 
 The general theory of the law, in regard to acts done and con- 
 tracts made by parties, affecting their rights and interests, is that 
 in all such cases there must be a free and full consent to bind the 
 parties. Consent is an act of reason, accompanied with delibera- 
 tion, the mind weighing, as in a balance, the good and evil on 
 
 ' I Story, Eq. Jur., \ 218. 
 
 ' Jarrett v. Goodnow, 39 W. Va. 602; s. c. 20 S. E. Rep. 575. 
 
 3 1 Story, Eq. Jur., \ 208. « Idem, \ 209. See ante, \ 50. 
 
FRAUD. 263 
 
 each side. And, therefore, it has been well remarked that every 
 true consent supposes three things: first, a physical power; sec- 
 ondly, a moral power; and, thirdly, a serious and free use of them.^ 
 Hence it is that the contracts of persons of unsound mind, wher- 
 ever, from the nature of the transaction, there is not entire good 
 faith, or the contract or other act is not seen to be just in itself, 
 or for the benefit of those persons, will be set aside in a court 
 of equity." 
 
 But, where a contract is entered into with good faith, and is 
 for the benefit of such persons, such as for necessaries, courts of 
 equity, as well as of law, will uphold the transaction;' also, if a 
 purchase is made in good faith, without any knowledge of the 
 incapacity, and no advantage has been taken of the party, courts 
 of equity will not interfere to set aside the contract, if injustice 
 will thereby be done to the other side and the parties can not be 
 placed in statu quo, or in the state in which they were before the 
 purchase.* 
 
 So, courts of equity, as already shown,'' will set aside contracts 
 and agreements on account of drunkenness. ° If, however, an- 
 other has induced a party to become intoxicated, and then drawn 
 him into an unfair and unconscionable bargain or contract while 
 so intoxicated, a court of equity will relieve against such an act.' 
 
 Closely allied to the foregoing are cases where a person, al- 
 though not positively insane, is yet of such weakness of mind as 
 to be unable to guard himself against imposition, or to resist im- 
 portunity, or undue influence.' In such case, if the circum- 
 stances justify the conclusion that the party has been imposed on 
 or circumvented, the transaction will be void in equity; and the 
 burden of proof is on the other party to show that no unfair ad- 
 vantage was taken of his weakness, and that a fair price was 
 given to him.' Also, contracts made under duress, or extreme 
 necessity and distress, and with infants, will be relieved against 
 in courts of equity.^" 
 
 » Snell, Prin. Eq. 393. See ante, \ 57. 
 
 ■' Idem, 394. See ante, U 55, 56, 57. 58, 59- 
 
 3 Idem. See ante, I 60; also, 2 Pomeroy, Eq. Jur. (2d ed.), ? 946. 
 
 * Idem. 5 Ante, \ 59. «.Snell, Prin. Eq. 393. 
 
 7 Idem. See ante, ? 59. ' See ante, ? 55. » Snell, Prin. Eq. 395. 
 
 " Idem, 393, 396; ante, I 58. 
 
264 EQUITY PRINCIPLES. 
 
 § 172. The classification of constructive fraud — 
 
 By far the largest class of cases with which the courts are 
 called upon to deal and in which equitable relief is sought, where 
 fraud is the ground of the action, is that of constructive fraud, the 
 definition of which we have already given.' This branch of fraud 
 may be divided into three classes, as follows: 
 
 I. Cases of constructive fraud, so called because they are con- 
 trary to some general public policy or to the policy of the law. 
 
 II. Constructive frauds, which arise from the abuse of some 
 peculiar confidential relation between the parties. 
 
 III. Constructive frauds, which unconscientiously compromit, 
 or injuriously affect, or operate substantially as frauds upon pri- 
 vate rights, interests, duties, or intentions of the parties them- 
 selves, or of third persons.' 
 
 § 173. Acts treated as fraudulent because against public 
 policy — 
 
 To this head may be referred marriage brokerage contracts, by 
 which one engages to give another some reward or remuneration 
 if he will negotiate a marriage for him. But such a contract is 
 utterly void and not susceptible of confirmation, and money paid 
 under it may be recovered back in equity.' 
 
 On this principle, every contract by which a parent or guardian 
 obtains any remuneration for promoting or consenting to the 
 marriage of his child or ward is void.* 
 
 ' 'The same principle pervades that class of cases where per- 
 sons, upon a treaty of marriage, by any concealment or misrepre- 
 sentation, mislead other parties, or do acts which are by other 
 secret agreements reduced to mere forms, or become inoperative. 
 Thus, where a man, on the treaty for the marriage of his sister, 
 let her have money privately, in order that her portion might ap- 
 pear as large as was insisted on by her intended husband, and she 
 gave a bond to her brother for the payment of it, it was decreed 
 to be delivered up.'" 
 
 ' Ante, I 166. 
 
 "^ See Snell's Prin. Eq. 398, from which this classification of constructive 
 fraud is taken. 
 
 3 Snell's Prin. Eq. 399; i Story Eq. Jurisp. \\ 260-264; Antcliff v. June, 81 
 Mich. 477; s. c. 10 X,. R. A. 621; Eastin v. Bank of Stockton, 66 Cal. 123; 
 Duval V. Millman, x6 N. Y. S. R. 607, 124 N. Y; 156, 26 N. E. Rep. 343. 
 
 < Snell's Prin. Eq. 399; 2 Pomeroy Eq. Jur. (2d ed.) \ 931. 
 
 s Snell's Prin. Eq. 399. 
 
FRAUD. 265 
 
 The same rules apply where one enters into a contract whereby 
 he engages to use his influence and power to induce the making 
 of a will in favor of the promisor or obligor.^ 
 
 Contracts in general restraint of marriage are also void.' "It 
 has been held that a promise to a woman to marry no one but 
 her was such a contract. So a bond by a widow not to marry 
 again. So a wagering contract that the party would not marry 
 within six years. But a promise by one with whom a woman 
 had cohabited, to pay her an annuity for life, provided she re- 
 mained single, was held to be good."' 
 
 Contracts in general restraint of trade are also void, as tend- 
 ing to promote monopolies, and to discourage industry, enter- 
 prise, and just competition. But the same reasoning does not 
 apply to a limited restraint of trade, as for instance not to carry 
 on a trade at a particular place, or with particular persons, or for 
 a Umited reasonable time; and a person may lawfully sell a secret 
 .in his trade or business, and restrain himself from using that 
 secret.* 
 
 In illustration of the rule that contracts in general restraint of 
 trade are void, it has been held that agreements not to do busi- 
 ness within the boundaries of an entire state are void.^ But the 
 sounder doctrine is that the right to contract in partial restraint 
 
 " Idein; 2 Pomeroy Eq. Jur. (2d ed.) \ 931. 
 
 =" Snell's Prin. Eq. 400; i Story Eq. Jurisp. \\ 275-280; 2 Pomeroy, Eq. Jur. 
 {2ded.)§933. 
 
 3 2 Pars. Contracts (6tli ed.) marginal page 73. 
 
 * Snell's Prin Eq. 400; i Story, Eq. Jur. \ 292; Anderson v. Jett, 89 Ky. 375; 
 3 c. 6 L. R. A. 390; Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461; 
 ^. c. 6 Iv. R. A. Ill; Newell v. Meyendorf, 9 Mont. 254; s. c. 8 L. R. A. 440; 
 Gloucester Isinglass & Glue Co. v. Russia Cement Co., 154 Mass. 92; s. c. 
 12 L. R. A. 563; I<eslie v. Lorillard, no N. Y. 519; s. c. i L. R. A. 456; Her- 
 reshoff v. Boutineau, 17 R. I. 3; s. c. 8 L. R. A. 469; National Ben Co. v. 
 Union Hospital Co., 45 Minn. 272; s. c. 11 L. R. A. 437; Carroll v. Giles, 30 
 S. C. 412; s. c. 4 L. R. A. 154; Western Wooden Ware Asso. v. Starkey, 84 
 Mich. 76; s. c. II L. R. A. 503; Tode v. Gross, 127 N. Y. 480; s. c. 13 1,. R. 
 A. 652; Texas Standard Cotton Oil Co. v. Adue, 83 Tex. 650; s. c. 15 1,. R. 
 A. 598; More v. Bennett, 140 111. 69; s. c. 15 I/. R. A. 361; Re Sugar Trust 
 Case, 54 Hun. 354; s. c. 5 L. R. A. 386; Richardson v. Buhl, 77 Mich. 632; 
 s. c. 6 \i. R. A. 457; People v. North River Sugar Reiin. Co., 121 N. Y. 582; 
 s. c. 9 L. R. A. 33; Watson v. Standard Oil Co., 4o,OhioSt. 137; s. c. 15 L. R. 
 A. 145; Chaplin v. Brown, 83 Iowa, 156; s. c. 12 L. R. A. 428. See 2 Pom., 
 Eq. Jur. (2ded.) ? 934- 
 
 5 Chappel V. Brockway, 21 Wend. 157; Lawrence v. Kidder, 10 Barb. 641. 
 
266 EQUITY PRINCIPLES. 
 
 of trade is not limited by state lines, and that such a contract will 
 be enforced so far as the territory to which it relates is concerned, 
 although it may include the territory of a state or even reach 
 beyond the lines of the state wherein it is made, provided the 
 contract is in other respects valid. ^ And a contract is not void as 
 being in general restraint of trade, when it operates to prevent a 
 single party from engaging or competing in the same business.^ 
 But it is otherwise where the agreement provides for the pur- 
 chase of a manufacturing business with the intent to discontinue 
 its operation, and that the persons making the sale shall not en- 
 gage in the same business in any of eight states named for the 
 period of five years, nor, during the same period, allow the prop- 
 erty where such business had been carried on to be used for tliat 
 purpose.' And all contracts and agreements for the advancement 
 of the prices of the necessaries of life, and all agreements which 
 tend to create and promote monopolies which are against the best 
 interest and welfare of the community, are void.* 
 
 "In like manner, all agreements which are founded upon viola- 
 tions of public trust or confidence, or of the rules adopted by 
 courts in furtherance of the administration of public justice, are 
 held void. Thus, contracts for bujang, selling or procuring of 
 public offices, agreements founded upon the suppression of crim- 
 inal prosecutions, contracts which have a tendency to encourage 
 champerty, and generally all agreements founded upon corrupt 
 considerations or moral turpitude, whether they stand prohibited 
 by statute or not, are treated as frauds upon public policy or pub- 
 lic law.'" 
 
 ' Diamond Match Co. v. Roeber, io6 N. Y. 473; s. c. 13 N. E. Rep. 419; 
 Steam Co. v. Winsor, 20 Wall. 64; Herreshoff v. Boutineau, 17 R. I. 38; s. 
 c. 8 L. R. A. 469; National Benefit Co. v. Union Hospital Co., 45 Minn. 272; 
 s. c. ir L. R. A. 437; Beale v. Chase, 31 Mich. 490; Newell v. Meyendorf, 9 
 Mont. 254; s. c. 8 Xi. R. A. 440. 
 
 = Leslie v. Lorillard, no N. Y. 519; s. c. i L. R. A. 456. 
 
 3 Western Wooden Ware Ass'n v. Starkey; 84 Mich. 76; s. c. 11 L,. R. 
 A. 503. 
 
 ' Leonard v. Poole, 114 N. Y. 371; s. c. 4 L. R. A. 728; Texas Standard 
 Cotton Oil Co. V. Adoue, 83 Tex. 650; s. c. 15 L. R. A. 598; Moore v, Bennett, 
 140 111. 69; s. c. 15 L. R. A. 361; Richardson v. Buhl, 77 Mich. 632; s. c. 6 L. 
 R. A. 457; People v. North River Sugar Refin. Co., 121 N. Y. 582; s. c. 9 L. 
 R. A. 33; Watson v. Standard Oil Co., 49 Ohio St. 137; s. c. 15 L. R. A. 145; 
 Chaplin v. Brown, 83 Iowa, 156; s! c. 12 L. R. A. 428. 
 
 s.Snell's Princ. Eq. 400, 401; Buckley v. Hamason, 50 Minn. 195; s. c. 16 
 
FRAUD. 267 
 
 The principle as thus laid down is a very broad one, and the 
 cases illustrative of its doctrines are numerous and varied in their 
 facts and circumstances. It is by virtue of this principle that a 
 covenant by a father that he will abstain from taking and exer- 
 cising any control over his children is invalid;^ that he cannot 
 make a valid antenuptial agreement as to the religious training 
 of his children;^ that the custody of a child is not the subject of 
 gift or barter;' that a mortgage given to secure the payment or 
 compensation for the appointment to or resignation of a public 
 office is invalid;* that a note given in consideration of past or 
 future illicit cohabitation is not enforceable;^ that a contract to 
 procure testimony that wiU win a law suit is void;* that a contract 
 to procure certain legislation providing compensation contingent 
 upon the procurement of the legislation stipulated for in the con- 
 tract, is void.' In short, all contracts made for the purpose of 
 unduly controlling or affecting official conduct, or the exercise of 
 legislative, administrative and judicial functions, are plainly op- 
 posed to public policy, and are therefore void.' 
 
 It is perhaps proper to refer to the principle above announced 
 the doctrine that obtains in our courts that a provision in a con- 
 tract that all differences arising under it shall be submitted to 
 arbitration, will not prevent a party from sustaining a suit in the 
 first instance in a court to enforce his rights under it, without 
 reference to the arbitration clause contained in it.' 
 
 L. R. A. 423; Puckett v. Alexander, 102 N. C. 95; s. c. 3 L. R. A. 43; Good- 
 ricli V. Tenney, 144 111. 422; s. c. 19 L. R. A. 371; Spalding v. Ewing, 149 
 Pa. St. 375; s. c. 15 L. R. A. 727; Chipman Valley & S. R. Co. v. Chicago, 
 St. Paul, M. & O. R. Co., 75 Wis. 224; s. c. 6 I<. R. A. 601; Boyle v. Adams, 
 50 Minn. 255; s. c. 17 L. R. A. 96; Rock v. Mathews, 35 W. Va. 531; s. c. 14 
 L. R. A. 508; Shattuck v. Watson, 53 Ark. 147; s. c. 7 t,. R. A. 551. 
 
 » Note to Enders v. Enders, 27 L. R. A. 56. ' Idem. 
 
 3 Chapsky v. Wood, 26 Kan. 650; s. c. 40 Am. Rep. 321. 
 
 * Basket v. Moss, 115 N. C. 448; s. c. 20 S. E. Rep. 733. 
 
 5 Massey v. Wallace, 32 S. C. 149; s. c. 10 S. E. Rep. 937. 
 
 ' Quirk V. Muller, 14 Mont. 467; s. c. 25 Iv. R. A. 87. An agreement in con- 
 sideration of a large sum of money to procure witnesses for a party, or to 
 procure them to swear to a particular fact, is illegal and void. Patterson v. 
 Donner, 48 Cal. 369. See the notes to the case of Goodrich v. Tenney, 19 
 Iv. R. A. at pages 372 and 373. 
 
 ^ Marshall v. Baltimore & Ohio R. R. Co., 57 U. S. 314, 14 L. ed. 953. 
 
 ' 2 Pomeroy, Eq. Jur. (2d ed.), § 935. 
 
 9 Kinney v. Baltimore & O. Employes' Relief Ass'n, 35 W. Va. 385; s. c. 
 
268 EQUITY PRINCIPI,ES. 
 
 § 174. Constructive frauds which arise from the abuse of 
 some peculiar, confidential, or fiduciary relation 
 existing between the parties — 
 
 An accurate writer observes that in this class of cases there is 
 often to be found some intermixture of deceit, imposition, over- 
 reaching, unconscionable advantage, or other mark of direct 
 fraud. But the principle on which courts of equity act in regard 
 thereto stands independent of any such ingredients, upon a mo- 
 tive of general public policy. The general principle which gov- 
 erns in all cases of this sort is, that if confidence is abused, 
 courts of equity will grant relief.^ 
 
 To this class of constructive frauds is referred the relation of 
 trustee and cestui que trust? Here the utmost good faith is ex- 
 acted. As to this relation, it can be safely said that the trustee 
 is bound not to do anything which can place him in a position 
 inconsistent with the interests of the beneficiary, or which has a 
 tendency to interfere with his duty in discharging the obliga- 
 tions imposed by the trust he has taken upon himself.' He 
 cannot, as hereafter seen,* purchase the trust subject,* nor ben- 
 efit himself from the use of the property in any manner what- 
 soever.* 
 
 In the next place, as to the relation of parent and child, it 
 has been said that contracts and conveyances, whereby ben- 
 efits are secured by children to their parents, or to persons 
 who stand in loco parentis, are the object of the court's jeal- 
 ousy, and if they are not entered into with scrupulously good 
 faith, and are not reasonable under the circumstances, they 
 will be set aside, unless third parties have acquired an interest 
 under them.'' 
 
 14 S. E. Rep. 8. But see ante, \ 27, providing merely for the amount to be 
 paid to be ascertained by arbitration. 
 
 » Snell's Princ. Bq. 401, 402. 
 
 ° Fetter on Eqnity, 146; Snell's Prin. Eq. 405. 
 
 3 Snell's Prin. Eq. 405. 
 
 ^Post, \ 578. 
 
 5 Wilson V. Brookshire, 126 Ind. 427; s. c. 9 I,. R. A. 792, 
 
 ' Peamster v. Feamster, supra; note to Wilson v. Brookshire, 9 X,. R. A., 
 at page 794. See post, ?§ 572-575. ante, ? 54. 
 
 ' Snell's Prin. Eq. 402. 
 
FRACD. 269 
 
 But it must not be understood from the announcement of this 
 principle that the various dealings between parent and child are with 
 us * to be viewed with suspicion, or that a parent is disqualified to 
 take a voluntary gift from his own child, without consideration, 
 on account of their relationship.^ In considering this subject in 
 the case of Pusey v. Gardner, cited in the foot-notes, our su- 
 preme court says: "A conveyance from a child to its parent, 
 whether with or without a valuable consideration, is presumed 
 to be valid in the absence of any circumstance or proof tending 
 to show fraud, misrepresentation or undue influence, or reason- 
 able grounds from which the court may presume that the act was 
 not entirely free and voluntary on the part of the child. " So, 
 too, a child may freely take from its father by deed or otherwise, 
 and a conveyance from a father to his child will be presumed to 
 be an advancement or gift, in the absence of evidence to the 
 contrary.' 
 
 And a voluntary conveyance of property by a parent to a child 
 is not presumed to be invaUd, unless a confidential relation is 
 shown to exist between them.* 
 
 To this head of fraud belong the transactions between a 
 guardian and his ward. These transactions will not be per- 
 mitted to stand, even when they have occurred after the minority 
 has ceased and the relation has become thereby terminated, if the 
 intermediate period has been short, unless the circumstances 
 show the fullest deUberation on the part of the ward and the 
 most abundant good faith on the part of the guardian.' 
 
 And to this branch of fraud are referred the dealings and 
 transactions between attorney and cUent, principal and agent, 
 and debtor, creditor and sureties.* It is said that a solicitor can- 
 not uphold a gift from his client made pending this relation, nor 
 that he cannot take advantage of this relation for professional 
 
 ' In West Virginia. 
 
 = I Story, Eq. Jur., ? 309; Pusey v. Gardner, 21 W. Va. 469, 470. 
 
 3 McClintock v. Loisseau, 31 W. Va. 865; Roberts v. Coleman, 37 W. 
 Va. 143; s. c. 16 S. E. Rep. 482; West v. Jones, 85 Va. 616; s. c. 8 S. E. 
 Rep. 468; McClanahan v. McClanahan, 36 W. Va. 34; s. c. 14 S. E. Rep. 
 419, post, \ 000. 
 
 < Bauer v. Bauer, 82 Md. 241; s. c. 33 Atl. Rep. 643. 
 
 5 Snell's Prin. Eq. 402, 403- 
 
 ' Idem, 403-408. 
 
270 EQUITY PRINCIPLBS. 
 
 gain beyond a fair remuneration for his services.^ So an agent 
 cannot use his situation to make it a source of private gain to 
 the detriment of his principal and the business which he is trans- 
 acting for his principal, nor can the creditor or debtor do any- 
 thing affecting the rights of the surety.^ 
 
 § 174a. Constructive frauds as being unconscientious or 
 injurious to the rights of third parties. 
 
 To this class may be referred many of those cases arising un- 
 der the statute of frauds, which require certain contracts to be 
 in writing to give them validity, which are hereafter considered 
 under another chapter.^ 
 
 Common sailors, it is said, being so extremely generous, improvi- 
 dent, and credulous, and therefore liable to be imposed upon, equity 
 views their contracts respecting wages and prize money with great 
 jealousy; and generally grants them relief whenever any in- 
 equality appears in the bargain, or an undue advantage has been 
 taken of them.* 
 
 To this branch of fraud is referred contracts made with heirs 
 at law regarding their expectancies, the onus lying upon the 
 party dealing with them to show that the transaction is reason- 
 able and bona fide} 
 
 Another class of constructive frauds consists of those cases 
 where a man designedly or knowingly produces a false impression 
 on another, who is thereby drawn into some act or contract in- 
 jurious to his own rights or interests. Thus, if a man having 
 title to property, which is offered for sale, allows another to bid 
 it in, the former so standing by will be bound by the sale.* 
 
 § 175. Cases illustrative of fraud — 
 
 The following are some of the cases found in the reports, 
 which illustrate the law of fraud as hereinbefore considered: 
 Thus, if a conveyance be made by A. to B., and at the same time 
 and as a part of the same transaction, B. executes a written 
 paper, whereby he declares that he purchased the land in trust 
 
 • Idem. See ante, \ 54. » Idem. 
 
 3 See Ch. XXXVII, on Specific Perfonnance, also Kimmins v. Oldham, 
 27 W. Va. 258. 
 < Snell's Princ. Eq. 408, 409. 5 Idem. 
 
 ' Idem; ante, \ 99; Engle v. Burns, 5 Call, 463. 
 
FRAUD. 271 
 
 for C, this constitutes an executed and express trust, and as 
 such it is valid, though C. gave no consideration whatever for 
 being thus made the cestui que trust. If B. afterwards conveys 
 this land to D., who has notice of this trust, a court of equity 
 will set aside such conveyance as fraudulent; ' so where a person, 
 reduced to a state of mental imbecility by habitual intoxication, 
 makes a voluntary and irrevocable deed of gift of his whole 
 estate, to a cousin, to the disherison of his half sisters, re- 
 serving the use to the donor for life, without any reasonable 
 motive assigned for such act, fraud and imposition may be in- 
 ferred from the circumstances, and from the very nature of the 
 contract; and this deed of gift is fraudulent and void; ' so where 
 a wife, while living in secret adultery, secured a conveyance from 
 her husband to herself, through deception, equity will set it 
 aside; ' so in an action ' by A. to compel an accounting by B. , 
 which was referred to C. as referee, and by mistake of C. $2,000 
 more than was actually due was reported as owing by B., and a 
 judgment for the full amount was entered against him, and by 
 him paid, after he had learned of the mistake. Subsequently B. 
 brought suit to correct the report and recover the amount er- 
 roneously paid against A. and E. , to whom A. had assigned the 
 claim, alleging the mistake, and that A. and E. had conspired to 
 defraud him of the amount, by failing to inform him of the mis- 
 take of the referee. Held, that the mere failure of A. and E. to 
 make disclosure towards whom they stood in no position of trust 
 or confidence, was not a fraud; that the mistake of the referee 
 could not be corrected, as the payment by B., with knowledge of 
 the facts, was a voluntary payment, and that he was not entitled 
 to recover; * so, if an agent employed to sell a tract of land be- 
 came himself the purchaser, by bargaining with his employer, 
 from whom he conceals the fact that a better price could be got 
 from another person, he is guilty of fraud, and the contract 
 ought to be vacated;^ and if a misrepresentation of the law by a 
 brother-in-law to his sister-in-law is made, whereby she was led 
 to believe her title to property held by her was invalid, and there- 
 fore made a sale to him, much to his advantage, Held, to vitiate 
 
 ' Titclinell v. Jackson, 26 W. Va. 460. 
 
 ' Samuel v. Marshall and wife et al., 3 Leigh, 567. 
 
 3 B3rrd v. Byrd, 00 Tenn. ocxj, 32 S. W. Rep. 198. 
 
 < Wood V. Amory, 105 N. Y. 278. 
 
 s Mosley's Adm'r v. Buck et al., 3 Munf. 232. 
 
272 EQUITY PRINC1PI<ES. 
 
 the sale at her election, even though such misrepresentation was 
 made in good faith; ' also a conveyance of land by an illiterate 
 grantor will be set aside, having been induced by the fraudulent 
 representations of the grantee that he, the grantor, was in peril 
 from the anger of his neighbors resulting from a current belief 
 that he had killed his wife; the consideration being but one-third 
 of the value of the land; ' where the evidence in a suit to cancel 
 a lease for twenty years, of mining lands, showed that the lessees 
 represented to the lessors that they had the means and intended 
 to mine and transport daily such a quantity of ore that the roy- 
 alty thereon, which was the only consideration for the lease, at 
 the rate agreed upon, would yield the lessors at least ten dollars 
 per day, collectible every night, and they promised to com- 
 mence operations within sixty days, but they wholly failed to 
 fulfill their promises. Held, that such representations were not 
 matters of opinion, and that the failure to make them good was 
 ground for canceling the lease; " and in the trial of a suit to can- 
 cel a deed of conveyance of real and personal property, worth 
 over $6, coo, made to defendants by complainant's intestate some 
 months before his death, the evidence showed acts evincing in- 
 sanity on the part of the grantor, who was nearly seventy years 
 old, and that he suffered from mental and physical infirmities, 
 and was subject to hallucinations; that the consideration that 
 the grantees would take care of and provide for him so long as 
 grantor should live or remain with them, and was grossly in- 
 adequate, and defendant's relation to decedent such as to bring 
 him under their dominion, Held, that fraud would be presumed 
 from the circumstances, and where the evidence is conflicting the 
 decree of the trial court, setting aside the deed for want of legal 
 capacity in the grantor to contract, is entitled to peculiar weight, 
 unless error be palpable.^ 
 
 § 176. Right to rescind for fraud must be exercised within 
 a reasonable time — 
 
 Although fraud is odious in the sight of a court of equity, and 
 vitiates all transactions into which it enters,' still a suit to re- 
 
 ' Sims V. Ferrill, 45 Ga. 585. = Knelkamp v. Kidding, 21 Wis. 503. 
 
 3 Rorer Iron Co. v. Trout and Wife, 83 Va. 397; s. c. 2 S. E. Rep. 713. 
 " Fishbume v. Ferguson's Heirs, 84 Va. 87, 4 S. E. Rep. 575. 
 5 Fleming v. Townsend, 50 Am. Dec. 318; De Louis v. Meek, Id. 491; 
 Shackelford v. Handley, 10 Am. Dec. 753; Perrill v. McKinley, 6 W. Va. 67. 
 
FRAUD. 273 
 
 scind a contxact or other instrument, on the grounds of fraud, 
 must be brought within a reasonable time.' Even where the evi- 
 dence is itself sufficient to establish the charge of fraud, relief 
 will be denied, where there has been long acquiescence and lapse 
 of time on the part of the plaintiff in the suit.'' The rule re- 
 quires that the contract be disaffirmed at the earliest practicable 
 moment after the discovery of the fraud, and a return of all that 
 has been received under it, and a restoration of the other party 
 to the condition in which he stood before the contract was 
 made.^ 
 
 § 177. The allegations in the bill, to rescind an instru- 
 ment on the ground of fraud — 
 
 Fraud is a conclusion of law, or the judgment of the court 
 upon the facts and intents incident thereto,* and, therefore, it is 
 necessary to set forth in the bill all the facts fully and explicitly 
 which it is claimed constitute the fraud,' the nature thereof and 
 the manner in which it was effected.^ A general charge of fraud 
 in a bill will not be sufficient to put the defendant to his answer.'' 
 
 The allegations should be made distinctly and positively; but 
 if made upon information and belief, they should be charged 
 as true, so that if the bill is taken for confessed, a decree may 
 be rendered granting the relief prayed for in the bill.* 
 
 And as the suit is usually brought for a rescission of the con- 
 tract, the bill should contain an offer on the part of the plaintiff 
 to return what he has received and make tender of it at the trial 
 or the hearing.' 
 
 ■ Newcombe v. Brooks, 16 W. Va. 32; Lapp v. Ryan, 23 Mo. App. 436; 
 Baird v. New York, 96 N. Y. 567; 8 Am. & Eng. Enc. Law, 805; tampau v. 
 Van Dyke, 15 Mich. 371. 
 
 = Smith V. Henkle, 81 W. Va. 524; Pusey v. Gardner, 21 W. Va. 469, 470. 
 
 3 I Beach, Mod. Eq. Jut., ? 76. 
 
 ■• Zell Guano Co. v. Heatherly, 38 W. Va. 409; s. c. 18 S. E. Rep. 6u. 
 
 5 Hale V. The West Virginia Oil and Oil Land Co., 11 W. Va. 229; Davis 
 V. Landcraft, 10 W. Va. 718; Pusey v. Gardiner, 21 W. Va. 469, 470; Pyles v. 
 Riverside Furniture Co., 30 W. Va. 123; s. c. 2 S. E. Rep. 809; Burley y. 
 Weller, 14 W. Va. 264; Campbell v. Lynch, 6 W. Va. 17. 
 
 « Harrison v. Walton, 95 Va. 72r, 30 S. E. Rep. 372. 
 
 ' Pyles V. Riverside Furniture Co., supra. 
 
 " Memphis and Charleston R. R. Co. v. Neighbors, 51 Miss. 412. 
 
 9 I Beach, Mod. Eq. Jur., ? 67. 
 18 
 
j274 EQUITY PRINCIPI<ES. 
 
 But if the contract sought to be rescinded is founded upon 
 an illegal consideration, either in whole or in part, as for instance, 
 the suppression of a criminal prosecution, this rule that a party 
 who would rescind a contract must restore what he has received 
 under it, does not apply. ^ Neither is it necessary to offer to re- 
 fund what the plaintiff has received from the defendant by virtue 
 of the contract, where there must be an accounting between the 
 parties, and it appears that upon such accounting the benefits in 
 the way of profits to the defendant will exceed the amount paid 
 to the plaintiff by the defendant; as whefe suit is brought to 
 cancel conveyances of an interest in a mine, the profits of which 
 have been enjoyed by the defendant since the conveyances made 
 to him by the plaintiff." 
 
 § 178. Relief against judgments and decrees in equity on 
 the ground of fraud — 
 An examination of the authorities will show that the frauds for 
 which a court of equity will interpose its aid to set aside a judg- 
 ment or decree between the same parties, rendered by a court of 
 competent jurisdiction, are those extrinsic of or collateral to any 
 matter involved in the suit in which the judgment or decree was 
 entered;' and furthermore, it will not entertain a suit to avoid a 
 judgment, or assume jurisdiction to prevent its execution, where 
 the plaintiff has an adequate and complete remedy at law.* 
 Neither will it grant relief to a judgment for any matter which 
 might have been availed of as a defense to the action at law in 
 which the judgment complained of was obtained, except for 
 fraud, accident or mistake.' But if a defendant, who had an 
 adequate defense at law, has been prevented from resorting to it 
 by a fraudulent representation or promise, that has misled or de- 
 
 ' Springfield Fire and Marine Insurance Co. v. Hull, 51 Ohio St. 270; s. c. 
 25 I,. R. A. 37, 37 N. E. Rep. 1116. 
 
 = Billings V. Aspen Mining and Smelting Co. 2 C. C. A. (U. S. ) 252; s. c. 
 51 Fed. Rep. 338. 
 
 3 2 Beach, Mod. Eq. Jur., ? 920. 
 
 * Bamett v. Bamett, 83 Va. 504; s. c. 2 S. E. Rep. 733; Kanawha & O. 
 Ry. Co. V. Ryan, 31 W. Va. 364; s. c. 6 S. E. Rep. 924; Howell v. Thomp- 
 son, 34 W. Va. 794; s. c. 12 S. E. Rep. 1088; Brown v. Chapman, 90 Va. 174; 
 s. c. 17 S. E. Rep. 855. 
 
 s Braden v. Reitzenberger, 18 W. Va. 286; Knapp v. Snyder, 15 W. Va. 
 434; Hamer v. Price, 17 W. Va. 523; Alleman v. Epight, 19 W. Va. 201; 
 Sayre v. Harpold, 33 W. Va. 553; s. c. 11 S. E. Rep. 16. 
 
FRAUD. 275 
 
 ceived Hmso that he did not make his defense, he will be relieved 
 in a court of equity.^ There is to this rule one exception, by- 
 virtue of our statute; and that is where the ground of defense to 
 the action at law is fraud in the procurement of the contract sued 
 on, or the breach of warranty of the title to personal property is 
 involved, or there has been a failure of the consideration of the 
 contract sued on. These defenses may be made either at law or 
 in equity.* 
 
 A bill will lie to set aside a consent decree, which was pro- 
 cured by fraud.' But the fraud which will be sufficient to set 
 aside a judgment or decree must be actual fraud.* 
 
 When a decree is sought to be set aside on the ground of fraud 
 or surprise, the recitals therein as to what occurred outside of the 
 court and not in its presence, when such recitals are thus directly 
 assailed, are not conclusive, but may be shown to be false.* But 
 as to what took place in court and was there recorded in the de- 
 cree is conclusive.' 
 
 § 179. Defenses to the charge of fraud — 
 
 Although, as already stated,^ fraud vitiates all transactions which 
 become tainted with it,* and courts do not hesitate to annul all con- 
 tracts thus affected, yet fraud may be defended against upon more 
 than one principle recognized by the courts. A conclusive answer 
 to a charge of fraud is that the plaintiff himself was concerned in 
 the transaction, participating in the fraud or in some manner 
 concerned in its promotion. It will not lift its hand to relieve 
 one who has been concerned in the fraudulent scheme which he 
 asks the court to set aside or annul.* But here it must appear 
 
 ' Knapp V. Snyder, supra. 
 
 = Jarrett v. Goodnow, 39 W. Va. 602; s. c. 20 S. E. Rep. 575; Bias v. 
 Vickers, 27 W. Va. 456. 
 
 3 Manion v. Fahy, 11 W. Va. 482. See also Rose v. Brown, 17 W. Va. 649, 
 and Armstrong v. Wilson, 19 W. Va. 108. 
 
 * Harrison v. Walton, supra. 
 
 5 Springston v. Morris, 00 W. Va. 000; 34 S. E. Rep. 766. 
 
 « Springston v. Morris, supra; Braden v. Reitzenberger, 18 W. Va. 286, 
 290; Taliaferro v. Forsyth, 11 Leigh, 394, especially in the opinion of the 
 court at page 302. 
 
 7 Ante, i 176. ' I Beach, Mod. Eq. Jur., ? 73. 
 
 9 Corrothers v. Harris, 23 W. Va. 177; Maurice v. Devol, 23 W. Va. 247; 
 McClintock v. Loisseau, 31 W. Va. 865; s. c. 2 L. R. A. 816, and the elabo- 
 rate note of the editor; Rock v. Mathews, 35 W. Va. 531; s. c. 14 L. R. A. 
 508. 
 
276 EQUITY PRINCIPI^ES. 
 
 that both parties were in pari delicto, that both are equal in guilt, 
 unless the contract sought to be annulled be malum in se, in 
 which case the maxim ex dolo malo non oritur actio (a right of 
 action can not arise out of fraud) is of universal application, and 
 the doctrine of pari delicto applies so as to entirely defeat the 
 action.^ 
 
 It is, perhaps, scarcely necessary to state that the rule does not 
 apply to independent deceit or fraud aside from the transaction 
 involved in the suit, so as to permit the defendant to set up some 
 wrong or fraud of the plaintiff not connected with the one con- 
 cerning which the suit has been brought.^ 
 
 And he who knowingly accepts and retains any benefit under 
 a contract tainted with fraud, or who uses the property acquired 
 as his own, after the discovery of the fraud, or who does any 
 positive act condoning the fraud, affirms the validity of the 
 contract.^ 
 
 Another good and sufficient defense to a suit seeking relief 
 upon the ground of fraud, is laches of the plaintiff in asserting 
 his rights. The rule here is that a person who elects to set aside 
 a deed or other transaction for fraud, must bring suit for the 
 purpose, without unreasonable delay, after the discovery of the 
 fraud/ 
 
 " Duval V. Wellman, 124 N. Y. 156; s. c. 26 N. E. Rep. 343; Tracy v. Tal- 
 madge, 14 N. Y. 162; Mount v. Waite, 7 John. 434; Wheaton v. Hibbard, 20 
 Jolins, 290. In the note to the case of Kirkpatrick v. Clark, 8 L- R. A. 511, 
 relative to this point, or exception to this rule, we find the following: "The 
 only exception to this rule is where one party acts under oppression, injus- 
 tice, hardship, undue influence or great inequality of age or condition; al- 
 though he may be in delicto, he is not in pari delicto, and may have relief 
 in equity. Phalen v. Clark, 19 Conn. 421; Pinckston v. Brown, 3 Jones, Eq. 
 494; Freelove v. Cole, 41 Barb. 318; Goodenough v. Spencer, 15 Abb. Pr. 
 (N. S.) 248, 46 How. Pr. 347, I Story, Eq. Jur., \ 300; Foley v. Green, i New 
 Eng. Rep. 17, 14 R. I. 618; Eagley v. Williams, 4 Gifif. 638. See, also, the 
 cases of Barnes v. Brown, 32 Mich. 146; Horn v. Star Foundry Co., 23 W. 
 Va. 522; Cain v. Cox, Id. 594. 
 
 = I Beach, Mod. Eq. Jur., § 81. '> Negley v. Lindsay, 67 Pa. St. 217. 
 
 ■• Whittaker v. Southwest Virginia Imp. Co., 34 W. Va. 217; s. c. 12 S. E. 
 Rep. 507; Trader v. Jarvis, 23 W. Va. 100; Pusey v. Gardiner, 21 W. Va. 469; 
 Curtlett V. Newman, 30 W. Va. 182; s. c. 3 S. E. Rep. 578; Hale v. Cole, 31 
 W. Va. 576; s. c. 8 S. E. Rep. 516; Walker v. Ruffner, 32 W. Va. 297; s. c. 
 9 S. E. Rep. 215; Barnett v. Barnett, 83 Va. 504; s. c. 2 S. E. Rep. 733; Grif- 
 fin V. Birkhead, 84 Va. 612; s. c. 5 S. E. Rep, 685; Bill v. Schilling, 39 W. 
 Va. 108; s. c. 19 S. E. Rep. 514; Williams v. Maxwell, 45 W. Va. 297, 31 S. 
 E. Rep., at p. 913, a well considered case. 
 
FRAUD. 277 
 
 As to what will be considered an unreasonable delay in the 
 bringing of a suit in cases of this character will depend upon the 
 facts and circumstances of the particular case before the court. ^ 
 
 If the charge of fraud consists of false representations, it may 
 be shown in defense that their falsity was known to the plaintiff, 
 and, if so, then he could not have relied upon them.^ Or it may 
 be shown that the plaintiff did not rely upon the statements of 
 the defendant, that he undertook to make his own investigation, 
 and that the defendant did nothing to prevent his investigation 
 from being as full as he chose to make it.' But, to entitle the 
 person making the misrepresentation to defend on the ground 
 that the plaintiff was not induced by it, he must demonstrate 
 that the plaintiff did not rely upon it. The burden is upon the 
 defendant in such a case.* 
 
 § 180. Of the evidence necessary to sustain the charge 
 of fraud — 
 
 The same rules and principles of evidence that apply and gov- 
 ern in the trial of questions of fraud in actions at law, equally 
 apply in the determination of like questions in courts of equity.* 
 
 The law does not presume fraud;* but this statement of the 
 law must be understood only as affirming, that a contract honest 
 and lawful on its face must be treated as such, until it is shown 
 to be otherwise by evidence either positive or circumstantial, for 
 fraud may be inferred irova. facts calculated to establish it.' 
 
 In the case of Goshom v. Snodgrass,* our supreme court holds 
 that, "if the facts estabUshed afford a sufficient and reasonable 
 ground for drawing the inference of fraud, the conclusion to 
 which the proof tends must, in the absence of explanation or 
 
 ■ Fetter on Equity, 42, 43. 
 
 = Anderson v. Burnett, 5 Howard, 105; s. c. 35 Am. Dec. 425; Bell v. By- 
 erson, 11 Iowa, 283; s. c. 77 Am. Dec. 142. 
 
 3 Southern Development Co. v. Silva, 125 U. S. 247-259, 31 L. ed. 678-683. 
 
 4 Linhart v. Foreman, 77 Va. 540. 
 
 5 B. & O. R. R. Co. V. Lafferty, 2 W. Va. 105; Van Bibber v. Beime, 6 W. 
 Va. 168; White v. Perry, 14 W. Va. 66; Snell's Princp. Eq. 383; i Beach, 
 Mod. Eq. Jur., ? 71. 
 
 « VvTiite V. Perry, 14 W. Va. 66. 
 
 7 Goshorn v. Snodgrass, 17 W. Va. 717; Harden v. Wagner, 22 W. Va. 356; 
 Parker v. Valentine, 27 W. Va. 677; Bronson v. Vaughan, 44 W. Va. 406, 29 
 S. E. Rep. 1022. 
 
 « 17 W. Va. 717. 
 
278 BQUITY PRINCIPI^BS. 
 
 contradiction, be adopted." And in this same case the court 
 further holds that "a deduction of fraud may be made not only 
 from deceptive assertions and false representations, but from 
 facts, incidents and circumstances, which may be trivial in them- 
 selves, but may in a given case be often decisive of a fraudulent 
 design." ^ 
 
 A recent author, treating of this matter, says: "Where mere 
 circumstances are relied on to show fraud, they must be such as 
 to raise strong presumptions of the actual existence of the fraud 
 imputed. It will not be inferred from circumstances which point 
 to no certain and definite results, although of a suspicious char- 
 acter. There may be circumstances calculated to create in the 
 mind grave suspicions that fraud and undue influence have been 
 practiced, and yet this may not be enough to create a satisfactory- 
 conviction of the fact. And fraud is not to be inferred because 
 it was possible or even probable, but must be shown by positive 
 proof or circumstances of such force as not to permit of serious 
 doubt. "2 ' 
 
 But all the evidence, of whatever character, must be relevant 
 and relate to the charge of fraud in question, and not to some 
 other or different transaction ; as for instance evidence to prove that 
 the defendant had cheated other persons than the plaintiff, is not 
 admissible for the purpose of raising an inference that he had de- 
 frauded the plaintiff in the particular transaction metioned in the 
 bill.^ 
 
 » In White v. Perry, supra, it is laid down that fraud is not to be assumed 
 on doubtful evidence or circumstances of mere suspicion, but that it must 
 be distinctly proven. The court further holds that it need not, however, be 
 proved by direct and positive evidence, but, like any other fact, it may be 
 shown by circumstantial evidence; and if the facts and circumstances of the 
 case are such as to lead a reasonable man to the conclusion that fraud in fact 
 existed, the charge of fraud is established. 
 
 In Moore v. Ullman, 80 Va. 307, the court says in its syllabus that the evi- 
 dence of fraud must be sufficient to satisfy the conscience of the court, but 
 may, and generally must, be circumstantial. 
 
 In Gregory v. Peoples, 80 Va. 355, the court says that fraud must not be 
 assumed on doubtful evidence, but must be clearly proved. 
 
 In Van Bibber v. Beirne, 6 W. Va. 168, the court holds that where actual 
 fraud is relied on to authorize a recovery, the fraud must be clearly proved. 
 
 ' I Beach, Mod. Eq. Jur., § 71. 
 
 - Edwards v. Warner, 35 Conn. 517. See ? 188 as to the matter considered 
 in this section. 
 
FRAUDULENT CONVEYANCBS. 279 
 
 CHAPTER XVIII. 
 
 FRAUDULENT CONVEYANCES. 
 
 i 181. Origin and history of the jurisdiction of courts in cases of fraudu- 
 lent conveyances. 
 
 182. Our present statute against fraudulent conveyances and its con- 
 
 struction. 
 
 183. Who may sue to set aside a fraudulent conveyance. 
 
 184. Who should be parties defendant in a suit to set aside a fraudulent 
 
 conveyance. 
 
 185. When a court will set aside a deed as fraudulent. 
 
 186. What the plaintiff's bill must allege to authorize the court to enter- 
 
 tain his application for relief against a fraudulent conveyance. 
 
 187. Proof of fraud and as to the party upon whom the burden thereof 
 
 rests. 
 
 188. Principles relating to the evidence in cases of fraudulent convey- 
 
 ances. 
 
 189. What conveyances fraudulent per se. 
 
 190. As to the knowledge of the grantee in the conveyance of the grantor's 
 
 fraudulent intent. 
 
 191. The proof of the consideration for the conveyance. 
 
 192. Voluntary conveyances and when they may be assailed by the cred- 
 
 itors of the grantors. 
 
 193. Conveyances made to the wife during coverture. 
 
 194. Improvements made by the husband upon the wife's land. 
 
 195. As to antenuptial settlements. 
 
 196. As to postnuptial settlements. 
 
 196a. Agreements of separation between husband and wife. 
 
 197. When a conveyance will stand as an indemnity for the consideration 
 
 advanced by the grantee, though the same may be set aside as to 
 creditors. 
 
 198. As to purchasers from a fraudulent grantor or grantee. 
 
 199. Lien acquired on property of fraudulent debtor by creditor assailing 
 
 the same as fraudulent 
 
 200. As to a preference among creditors of an insolvent. 
 
 201. When an instrument or act creating a preference must be assailed 
 
 by the unsecured creditor. 
 
 202. Transactions to which the statute forbidding preferences does not 
 
 apply. 
 
 203. The effect and policy of the law forbidding an insolvent debtor to 
 
 prefer any of his creditors. 
 
28o EQUITY PRINCIPLES. 
 
 § i8i. Origin and history of the jurisdiction of courts in 
 cases of fraudulent conveyances- 
 Conveyances and transfers of property in fraud of the rights 
 of creditors were voidable at common law;^ but our present law, 
 under which relief is sought against fraudulent conveyances, is 
 derived from an act of the English parliament, passed during the 
 reign of Elizabeth.^ 
 
 The statute of Virginia, passed in the year 1785, is co-exten- 
 sive in its scope and effect with those of England, from which it 
 was taken, and is considered only as declaratory of the princi- 
 ples of the common law.^ 
 
 The essential features of the English statutes against these 
 conveyances, and the early enactments of the legislature of Vir- 
 ginia, were carried by the revisors into the Code of 1849, and 
 thence into the Code of i860 of the State of Virginia, and from 
 which the law of this state is taken, except the amendment to 
 section two made by our own legislature for the first time in the 
 year 1891, and then this amendment as itself amended in the 
 year 1895.* So, we may with safety say that the law against 
 fraudulent conveyances had its origin in the common law, and 
 was subsequently broadened and explained by the positive en- 
 actments of the English and our own governments. 
 
 § 182. Our present statute against fraudulent convey- 
 ances, and its construction — 
 "Every gift, convej'ance, assignment or transfer of, or charge 
 
 ' Beach, Mod. Eq. Jur., § loi, citing Twyne's Case, i Sm. Lead. Cas. i; 
 Cadogan v. Kennett, Cowp. 432; Clements v. Moore, 6 Wall. 290; Baker v. 
 Humplirey, 101 V. S. 499; Nelliss v. Clark, 20 Wend. 27. 
 
 " There were two of these acts against fraudulent conveyances: The first, 
 passed in the year 1571, applicable to lands and chattels and intended to pro- 
 tect existing and subsequent creditors; the other, passed in the year 1585, 
 and intended to benefit subsequent purchasers. In November, 1785, and in 
 January, 1787, the legislature of Virginia passed acts which embodied a con- 
 densation of the two acts of parliament passed during the reign of Elizabeth, 
 and this joint enactment of the Virginia legislature was intended to be as com- 
 prehensive as the two acts of parliament, from which the enactment of the 
 legislature of Virginia was taken. Bank of Alexandria v. Patton, 1 Rob. 
 Rep. 499, 539; Pitzhugh v. Anderson, 2 Hen. & Munf . 289, 302. 
 
 3 Pitzhugh V. Anderson, 2 Hen. & Munf. 302; Hamilton v. Russell, i 
 Cranch. 309; Goshorn v. Snodgrass, 17 W. Va. 717. 
 
 * Lockhart & Ireland v. Beckley, 10 W. Va. 87, 97, 98. 
 
FRAUDULENT CONVEYANCES. 281 
 
 upon, any estate, real or personal, every suit commenced, or de- 
 cree, judgment or execution suffered or obtained, and every bond 
 or other writing given, with intent to delay, binder or defraud 
 creditors, purchasers or other persons, of or from what they are or 
 may be lawfully entitled to, shall, as to such creditors, pur- 
 chasers or other persons, their representatives or assigns, be void. 
 This section shall not affect the title of a purchaser for valuable 
 consideration, unless it appear that he had notice of the fraudu- 
 lent intent of his immediate grantor or of the fraud, rendering 
 void the title of such grantor."^ 
 
 "In this section the word 'transfer* shall be taken to include 
 every gift, sale, conveyance and assignment, and the word 
 'charge' shall be taken to include every confessed judgment, 
 deed of trust, mortgage, lien and incumbrance. Every transfer 
 or charge which is not upon consideration deemed valuable in 
 law, shall be void as to creditors whose debts shall have been con- 
 tracted at the time it was made; but shall not on that account 
 merely be void as to creditors whose debts shall have been con- 
 tracted, or as to purchasers who shall have purchased after it was 
 made; and though it be decreed to be void as to a prior creditor, 
 because it was voluntary, it shall not for that cause be decreed 
 to be void as to subsequent creditors or purchasers. Every transfer 
 or charge made by an insolvent debtor attempting to prefer any 
 creditor or any surety or indorser for a debt to the exclusion or 
 prejudice of any other creditor, shall be void as to such prefer- 
 ence or security, but shall be taken to be for the benefit of all 
 creditors of such debtor, and all the property so attempted to be 
 transferred or charged shall be applied and paid pro rata upon all 
 the debts owed by such debtor at the time such transfer or charge 
 is made; provided, that any such transfer or charge by an in- 
 solvent debtor shall be valid as to such preference or priority un- 
 less a creditor of such insolvent shall institute a suit in chancery 
 within one year after such transfer or charge was made to set 
 aside and avoid the same and cause the property so transferred 
 or charged to be applied toward the payment pro rata of all the 
 debts of such insolvent debtor existing at the time such transfer 
 or charge is made, subject, however, to the provision hereinafter 
 contained with reference to creditors uniting in such suit and con- 
 tributing to the expense thereof. But if such transfer or charge 
 
 ' Code, 1891, chap. 74, sec. i. 
 
282 BQUITY PRINCIPLBS. 
 
 be admitted to record within eight months after it is made, then 
 such suit to be availing must be brought within four months 
 after such transfer or charge was admitted to record. Every 
 such suit shall be deemed to be brought in behalf of the 
 plaintifE and all other creditors of such insolvent debtor, but the 
 creditor instituting such suit or proceeding, together with all 
 creditors of such insolvent debtor who shall come into the suit 
 and unite with the plaintifE before final decree and agree to con- 
 tribute to the costs and expenses of said stiit, shall be entitled to 
 have their claims first paid in full pro rata out of the property so 
 transferred or charged in preference to any creditor of such 
 debtor who shall before final decree decline or fail to so unite and 
 agree to contribute to the costs and expenses of said suit, but not 
 in preference to such creditor as may attempt to sustain the 
 preference given him by such transfer or charge; provided, fur- 
 ther, that nothing in this section shall be taken to prevent the 
 making of a preference as security for the payment of purchase- 
 money or a bona fide loan of money or other bona fide debt con- 
 tracted at the time such transfer or charge was made or as se- 
 curity for one who at the time of such transfer or charge becomes 
 an indorser or surety for the payment of money then borrowed; 
 provided further, that nothing in this section contained shall 
 be taken to affect any transfer of bonds, notes, stocks, securi- 
 ties or other evidences of debt in payment of or as collateral 
 security for the payment of a bona fide debt or to secure any in- 
 dorser or surety whether such transfer is made at the time such 
 debt is contracted or indorsement made or for the payment or 
 security of a pre-existing debt."^ 
 
 This amendment of section two of chapter seventy-four of the 
 Code, engrafts into the law on fraudulent conveyances, an entirely 
 new feature, and one which is new to the common law. We 
 here refer to that part which forbids an insolvent debtor from 
 giving any preference to or among any of his existing creditors. 
 This feature of the statute will be treated upon further along in 
 distinct sections.' 
 
 It is well settled upon the authority of the adjudicated cases, 
 that the statute against fraudulent conveyances must be liberally 
 
 ' Acts, 1895, pp. 12, 13. This is an amendment of section 2 of chapter 74 
 of the Code, amending and re-enacting it, as amended and re-enacted by- 
 chapter 123 of the Acts of the Legislature of 1891. 
 
 ' See/w^, J5 200-203. 
 
FRAUDULENT CONVEYANCBS. 283 
 
 construed in favor of the creditor and in suppression of the fraud.' 
 The statute declares these conveyances made to hinder, delay 
 or defraud creditors void; but the courts invariably construe 
 them to be void only so far as the rights of the creditors are con- 
 cerned, holding them valid and binding between the parties them- 
 selves.' It is treated by our court as error to decree the deed 
 void in toto? 
 
 % 183. 'Who may sue to set aside a fraudulent convey- 
 ance — 
 
 ' 'A creditor, before obtaining a judgment or decree for his claim, 
 may institute any suit to avoid a gift, conveyance, assignment, or 
 transfer of, or charge upon, the estate of his debtor, which he 
 might institute after obtaining such judgment or decree, and he may 
 in such suit have all the relief in respect to said estate which he 
 would be entitled to after obtaining a judgment or decree for the 
 claim which he may be entitled to recover. ' ' * 
 
 In the absence of this statute (taken from that of Virginia) a 
 creditor could not bring a suit to set aside a fraudulent convey- 
 ance until he had estabUshed his demand at law, by obtaining 
 judgment, and in case the conveyance related to personal property, 
 until he had sued out execution against the debtor or his repre- 
 sentative, and thus shown that his debt could not be made by 
 common-law methods.* Under this statute any creditor at large 
 of the fraudulent debtor, without respect to the form or char- 
 acter of the debt,* may maintain a suit to set aside a conveyance 
 as fraudulent as to him, even though the claim be an unliqui- 
 dated one founded upon no certainty as to the amount of the 
 damages claimed, as, for instance, damages for a breach of prom- 
 
 ' Harden v. Wagner, 22 W. Va. 356, 365; Hunter's v. Waite, 3 Gratt, 26, 
 58; Fitzhugh V. Anderson, 2 Hen. & Munf. 302. 
 
 " I Beach, Mod. Eq. Jvir., § loi; Core v. Cunningham, 27 W. Va. 206. 
 
 3 Duncan v. Custard, 24 W. Va. 730; Love v. Tinsley, 32 W. Va. 25; s. c. 
 <i S. E. Rep. 44; Farmer's Bank v. Corder, 32 W. Va. 232; s. c. 9 S. E. 
 Rep. 220. 
 
 * Code, 1891, chap. 133, sec. 2. See also Tuft v. Pickering, 28 W. Va. 330; 
 "Watkins v. Wortman, 19 W. Va. 78, 82. 
 
 s Chamberlayne v. Temple, 2 Rand. 384; Rhodes v. Cousins, 6 Rand. 188; 
 Kelso V. Blackburn, 3 Leigh, 299. 
 
 ' Highland V. Highland, 5 W. Va. 63; Peay v. Morrison, 10 Gratt. 149. 
 
284 BQUITY PRINCIPIvES. 
 
 ise to marry. ^ The suit may be maintained by the state to the 
 same extent and with hke effect that an individual may do;", by a 
 co-surety against another surety to compel contribution.' 
 
 The statute embraces all creditors who but for the conveyance 
 would have had the right to subject the property embraced therein 
 to the payment of their debts.* But no suit can be maintained to 
 set aside a conveyance as fraudulent, unless the debt upon which 
 the plaintiff's suit is predicated, is due and payable at the time 
 the suit is brought.' Neither can the heirs of a fraudulent 
 grantor, in the absence of a statute authorizing it,* nor his per- 
 sonal representative, sue to set aside a fraudulent conveyance, 
 because inasmuch as the decedent himself could not maintain 
 a suit,^ those who inherit through him, or represent him, can- 
 not do so.* But the receiver of a court, as we have in a former 
 section shown,' may sue to avoid a fraudulent conveyance made 
 in fraud of the rights of the , creditors whose interests he has 
 been appointed to represent.^" 
 
 § 184. Who should be parties defendant in a suit to set 
 aside a fraudulent conveyance — 
 
 In a suit to set aside a conveyance as fraudulent and subject 
 the property embraced therein, or so much thereof as is necessary, 
 to the payment of the plaintiff's debt, it is not necessary to con- 
 
 » Barton v. Mill, 78 Va. 468. Where a claim is founded on tort, the 
 plaintiff, from the time the action is beg^n, is so far a creditor as to be 
 able to avoid conveyances made with an actual intent to defraud him or 
 defeat his right. A person injured may set aside a voluntary conveyance 
 made by the tort-feasor to his wife with the intention thereby to defeat his 
 recovery for the tort. So, too, a conveyance made with intent to defeat the 
 recovery of damages in a pending action for slander, is fraudulent and void 
 within the statute of frauds." 2 Beach, Mod. Eq. Jur., ? 912. 
 
 = State V. Bowen, 38 W. Va. 91; s. c. 18 S. E. Rep. 375; State v. Burke- 
 holder, 30 W. Va. 593; s. c. 5 S. E. Rep. 439. 
 
 3 Hawker v. Moore, 40 W. Va. 49; s. c. 20 S. E. Rep. 848. 
 
 * Code, chap. 74, sec. 9. 
 
 5 Simon V. Ellison, 00 Va. 000, s. c. 22 S. E. Rep. 860. 
 
 * Kitts V. Wilson, 130 Ind. 492; s. c. 29 N. E. Rep. 401. 
 ' Billingsley v. Menear, 44 W. Va. 657, 30 S. E. Rep. 61. 
 
 ^ Spooner's Adm'r v. Hillbish's Ex'r, 92 Va. 333; s. c. 23 S. E. Rep. 751; 
 McClintock v. Soisseau, 31 W. Va. 865; s. c. 8 S. E. Rep. 612; 2 Beach, Mod. 
 Eq. Jur., § 901. 
 
 9 Ante, § 142. 
 
 '° Mandcville v. Avery, 124 N. Y. 376; s. c. 26 N. E. Rep. 951; Dunham v. 
 Byrnes, 36 Minn. 108; s. c. 30 N. W. Rep. 40/, 
 
FRAUDUI,ENT CONVEYANCES. 285 
 
 vene the other creditors of the debtor and ascertain the liens;' 
 but the parties directly concerned and connected with the con- 
 veyance or transfer as grantees or assignees, must be before the 
 court in order that a full determination of the matter binding all 
 parties interested may be had in the cause;' but further than this, 
 the rule does not extend.^ 
 
 § 185. "When a court will set aside a deed as fraudulent — 
 
 As to all conveyances that are merely voluntary and without 
 consideration to support them, this fact alone appearing, they 
 will be avoided as far as they interfere with or break in upon the 
 rights of existing creditors;* and the deed, as to such creditors, 
 is absolutely void, without regard to the amount of the debts, 
 the extent of the property so conveyed, the motives that 
 prompted it, or the condition or circumstances of the party at 
 the time.' 
 
 Where the deed or other transfer is for a consideration deemed 
 valuable in law, it must be shown that the grantor or party 
 making the transfer was actuated by a fraudulent intent or pur- 
 pose in making the same, and that the grantee or transferee par- 
 ticipated in such fraudulent purpose or intent, or had knowledge 
 or notice thereof.* 
 
 A court of equity will annul a conveyance made in fraud of 
 creditors, although the debtor has other property which the 
 plaintiff might have reached by execution or other means.' 
 
 And where a deed or other transfer is wholly inconsistent with 
 the object and purpose of its execution, or where it is invalid on 
 its face, it wiU be set aside as void by a court of equity;* but the 
 conveyance must be fraudulent at the time of its execution in or- 
 der to authorize the court to disturb it at the suit of the creditor. 
 
 ' Burt V. Timmons, 29 W. Va. 441; s. c. 2 S. E. Rep. 780. 
 
 = Thornton v. Gaar, 87 Va. 315; s. c. 12 S. E. Rep. 753. 
 
 3 Herzog v. Weiler, 24 W. Va. 199; Coe v. Cunningham, 27 W. Va. 206. 
 
 < Lockhart & Ireland v. Beckley, 10 W. Va. 89; Rogers v. Verlander, 30 
 W. Va. 619; s. c. 5 S. E. Rep. 847; Chamberlayne v. Temple, 2 Rand. 384. 
 
 5 Lockhart & Ireland v. Beckley, 10 W. Va. 87. 
 
 « Bishoff V. Hartley, 9 W. Va. 100; Martin & Gilbert v. Rexroad, 15 W. 
 Va. 512; Goshom v. Snodgrass, 17 W. Va. 717; Harden v. Wagner, 22 W. 
 Va. 356; Bowyer v. Martin, 27 W. Va. 442; Merchant's Bank of Danville v. 
 Belt, 00 Va. 000, 30 S. E. Rep. 467- 
 
 7 Hoffman v. Fleming, 43 W. Va. 762, 28 S. E. Rep. 790. 
 
 8 Livesay v. Beard, 22 W. Va. 585. 
 
286 EQUITY PRINCIPIvES. 
 
 If it is not fraudulent then, it cannot become so afterwards by 
 the act of the parties.^ 
 
 § i86. What the plaintifFs bill must allege to authorize 
 the court to entertain his application for relief 
 against a fraudulent conveyance — 
 
 It is a well-settled principle of law, that matters not in issue 
 between the parties cannot be considered by the court upon the 
 
 ■ Kile V. Harveys, 25 W. Va. 717; Harden v. Wagner, 22 W. Va. 356; 
 Baker v. Nagle, 82 W. Va. 876; s. c. i S. E. Rep. 191. 
 
 We here subjoin a list of cases wherein the court set aside the conveyances 
 as fraudulent: 
 
 Brooks V. Applegate, 37 W. Va. 373, 16 S. E. Rep. 585; Reynolds v. Gaw- 
 throp, 37 W. Va. 3, 16 S. E. Rep. 364; Hunter v. Hunter, 10 W. Va. 321; 
 Rogers v. Verlander, 30 W. Va. 619, 5 S. E. Rep. 847; l^rst Nat. Bank v. 
 Bowman, 36 W. Va. 649, 14 S. E. Rep. 989; Davis S. M. Co. v. Dunbar, 
 29 W. Va. 617, 2 S. E. Rep. 91; Sturm v. Chalfant, 38 W. Va. 248, 18 S. E. 
 Rep. 451; Darby v. Galligan, 33 W. Va. 246, 10 S. E. Rep. 400; Hutchinson 
 V. Boltz, 35 W. Va. 754, 14 S. E. Rep. 267; Bartlett v. Cleavinger, 35 W. Va. 
 719, 14 S. E. Rep. 273; Burt v. Timmons, 29 W. Va. 441, 2 S. E. Rep. 780; 
 Goshom V. Snodgrass, 17 W. Va. 717; Hope v. Valley City Salt Co., 25 
 W. Va. 789; Livesay v. Beard, 22 W. Va. 585; White v. Perry, 14 W. 
 Va. 65; Spencer v. Smith, 34 W. Va. 697, 12 S. E. Rep. 828; Himan v. 
 Thorn, 32 W. Va. 507, 9 S. E. Rep. 930; Knight v. Capito, 23 W. Va. 639; 
 Martin v. Warner, 34 W. Va. 182, 12 S. E. Rep. 477; Reilly v. Barr, 34 W. 
 Va. 95, II S. E. Rep. 750; Clarke v. King, 34 W. Va. 631, 12 S. E. Rep. 775; 
 Webb V. Ingham, 29 W. Va. 389, i S. E. Rep. 816; Kanawha Valley Bank v. 
 Atkinson, 32 W. Va. 203, 9 S. E. Rep. 175; Slater v. Moore, 86 Va. 26, 9 S. 
 E. Rep. 419; Childs v. Hagerty, 36 W. Va. 649, 14 S. E. Rep. 989; Armstrong 
 V. Lachman, 84 Va. 726, 6 S. E. Rep. 129; Rucker v. Moss, 84 Va. 624, 5 S. 
 E. Rep. 527; Butler v. Thompson, 45 W. Va. 660, 31 S. E. Rep. 960. 
 
 In the following cases the conveyances were held not to be fraudulent: 
 
 Paul V. Baugh, 85 Va. 955, 9 S. E. Rep. 329; Parker v. Valentine, 27 W. 
 Va. 677; Martin & Gilbert v. Rexroad, 15 W. Va. 512; Welsh v. Solenberger, 
 85 Va. 441, 8 S. E. Rep. 91; Blackshire v. Pettit, 35 W. Va. 547, 14 S. E. 
 Rep. 133; Casto v. Fry, 33 W. Va. 449, 10 S. E. Rep. 799. 
 
 This array of cases in which our court has granted the plaintiff relief 
 against conveyances alleged to be fraudulent, will serve to show the liberal 
 construction which is given by the courts of our state to the statute against 
 this class of transfers of property, and justifies the following remarks of 
 Brannon, J., in Kanawha Valley Bank v. Atkinson, 32 W. Va. 203, 9 S. E. 
 Rep. 175: "A line of decisions in our state, made up of many well-consid- 
 ered cases, goes far in behalf of creditors against fraudulent conveyances, 
 and there is perhaps no state in the Union whose decisions go farther to 
 vindicate the rights of honest creditors over such conveyances, especially 
 between relatives, and more especially between husband and wife." 
 
FRAUDULENT CONVEYANCES. 287 
 
 hearing of the cause, and to be made an issue they must be 
 charged in the bill, or averred in the answer.^ Hence, under 
 this rule, to render the bill sufficient to set aside a conveyance 
 as in fraud of the plaintiff's rights as a creditor of the defendant, 
 the bill must allege a valid debt of some character, whether 
 founded on contract or tort,^ which the plaintiff has a right to 
 enforce against the fraudulent debtor, and also set forth the 
 fraudulent conveyance or transfer; ' together with a description 
 of the property conveyed, or the bill must exhibit a copy of the 
 instrument or transfer as a part thereof,^ and contain an allegation 
 of the fraudulent intent with which the transaction was made.^ A 
 general charge of fraud in the bill is not sufficient, the facts con- 
 stituting it must be alleged, though not the matters which are 
 the mere evidence of it.® An allegation that the conveyance was 
 made with the "intent to hinder, delay and defraud the creditors" 
 of the grantor,^ and especially the plaintiff,* and that the grantee 
 "knew of the grantor's indebtedness and of his purpose to de- 
 fraud his creditors, and that he received the deed with such 
 knowledge and with the purpose to aid him in the perpetra- 
 tion of the fraud," is a sufficient averment of the grantor's in- 
 tent to defraud his creditors and the grantee's participation 
 therein.' 
 
 The bill may be properly drawn so as to allege a voluntary 
 transfer of the property to the grantee, as well as upon a valuable 
 consideration, though with a fraudulent intent on the part of the 
 grantor of which the grantee had knowledge, setting forth in the 
 
 ' Hunter's Ex'rs v. Hunter, 10 W. Va. 321; Bierne v. Ray, 37 W. Va. 571, 
 16 S. E. Rep. 804; Vance Shoe Co. v. Haught, 41 W. Va. 275, 23 S. E. Rep. 
 
 553- 
 
 » Petree v. Brotherton, 133 Ind. 692, 32 N. E. Rep. 300; Miller v. Cook, 
 124 Ind. loi, 24 N. E. Rep. 577; Carbiener v. Montgomery, 97 Iowa, 659, 66 
 N. W. Rep. 900. 
 
 ' Tuft V. Pickering, 28 W. Va. 330. 
 
 * 5 Enc. PI. & Pr. 569, 570; Brown v. John V. Eerrell Co. (C. C. D. Kan.), 
 74 Fed. Rep. 764. 
 
 5 Kain v. Larkin, 141 N. Y. 144, 36 N. E. Rep. 9; Riley v. Carter, 76 Md. 
 581, 19 L. R. A. 489; Pierce v. Hoover, 142 Ind. 626, 42 N. E. Rep. 223; 
 Hoffman v. Henderson, 145 Ind. 613, 44 N. E. Rep. 629. • 
 
 ' Vance Shoe Co. v. Haught, supra. 
 
 7 Watkins v. Nortman, 19 W. Va. 78, 82. 
 
 * Riley v. Carter, supra; Kain v. Larkin, supra. 
 9 Pierce v. Hoover, supra. 
 
288 EQUITY PRINCIPLES. 
 
 same bill these two grounds of eqxiitable jurisdiction in separate 
 paragraphs.^ It is a sufficient allegation of the former of these 
 grounds to allege that the grantor made the conveyance without 
 any consideration, and that the same was made voluntarily, with 
 the intent on the part of the grantor to hinder, delay and defraud 
 his creditors.' 
 
 If the plaintiff in the bill to set aside a fraudulent conveyance 
 has reduced his claim against the fraudulent grantor to judg- 
 ment, he need not allege the issue of execution and the return of 
 ' 'no property found out of which the judgment could be satis- 
 fied," ' as the creditor may assail a fraudulent conveyance with- 
 out waiting to reduce his claim to judgment. 
 
 It is also suggested that in the draft of the bill that any 
 prominent facts usually accompanying a fraudulent transfer of 
 property, such as the grantor's insolvency, his retention of the 
 possession of the property, or the relationship of the parties or 
 any other matters treated as pointing to the probability of a 
 fraudulent intent on the part of the grantor, be set forth in the 
 bill. 
 
 § 187. Proof of fraud and as to the party upon •whom the 
 burden thereof rests — 
 
 Most law writers distinguish between the terms "proof" and 
 "evidence;" applying the former to the legal effect of the evi- 
 dence when adduced by the party, and the latter to the medium 
 of its adduction.* 
 
 Proof of fraud is that conviction or impression made upon the 
 mind and conscience of the court or chancellor, created by the 
 facts and circumstances of the particular case, as to lead to the 
 reasonable and just conclusion that the conveyance in question 
 was made with the intent to hinder, delay or defraud ej^isting or 
 future creditors.* 
 
 ' Hoffman v. Henderson, supra. ' Kain v. Larkin, supra. 
 
 ' Andrews v. Donnerstag, 171 111. 329, 49 N. E. Rep. 558. 
 
 ♦ I Rice, Civ. Bv., 5 4, p. 3, and the authorities there cited. 
 
 5 Lockhart & Ireland v. Beckley, 10 W. Va. 87; Goshorn's Ex'rs v. Snod- 
 grass, 17 W. Va. 717; Reynolds v. Gawthrop, 37 W. Va. 3; s. c. 16 S. E. 
 Rep. 364; Hutchinson v. Boltz, 35 W. Va. 754; s. c. 14 S. E. Rep. 267; Burt 
 V. Timmons, 29 W. Va. 441; s. c. 2 S. E. Rep. 780; Parker v. Valentine, 27 
 W. Va. 677; Uvesay v. Beard. 22 W. Va. 585; Martin & Gilbert v. Rexroad, 
 15 W. Va. 512. 
 
FRAUDULENT CONVBYANCES. 289 
 
 As we have already seen/ the law does not presume fraud, but 
 the burden is on him who alleges it to show its existence.'' 
 But the evidence to establish the charge of fraudulent intent 
 need not necessarily be of a direct or positive character, but may 
 consist merel3' of the circumstances attending the transaction.' 
 Circumstantial evidence is not only sufficient in this class of 
 cases, but is often the only evidence that can be adduced.* 
 
 Therefore, where there has appeared in the evidence such facts 
 and circumstances as to lead to the inference that the convey- 
 ance or transfer has been made with the intent to hinder, delay 
 or defraud creditors, then the burden of proof shifts from the 
 plaintiff, where it rested in the first instance, to the defendant; 
 and unless this inference is rebutted by proper testimony or other 
 and sufficient circumstances connected with the case, the fact of 
 fraud will be taken and treated as conclusively established.* 
 
 § 188. Principles relating to the evidence in cases of 
 fraudulent conveyances — 
 
 The courts cannot prescribe any exact standard or criterion \>y 
 which to determine when and when not the charge of fraud may 
 be said to be made out, so as to afford the relief sought by the 
 plaintiff in the particular case. But they have ventured to lay 
 down certain rules and principles which may be used as guides 
 in many cases in arriving at the truth with reference to the mat- 
 ters in issue between the parties.* 
 
 These principles and rules cannot be said to be decisive in de- 
 
 ' Anie, 1 180. 
 
 = White V. Perry, 14 W. Va. 66; Cohn v. Ward, 32 W. Va. 34; s. c. 9 S. E. 
 Rep. 41; Welsh v. Solenberg, 85 Va. 441; s. c. 8 S. E. Rep. 91; Harden v. 
 Wagner, 22 W. Va. 356; Hale v. West Virginia Oil and Oil Land Co., 11 W. 
 Va. 229. 
 
 ' Richardson v. Ralphsnyder, 40 W. Va. 15, 20 S. E. Rep. 854. ' Idem. 
 
 5 Parker V. Valentine, 27 W. Va. 677; Martin & Gilbert v. Rexroad, 15 
 W. Va. 512; Blackshire v. Pettit, 35 W. Va. 547; s. c. 14 S. E. Rep. 133; 
 Goshom V. Snodgrass, 17 W. Va. 717; Butler v. Thompson, 45 W. Va. 660, 
 31 S. E. Rep. 960. 
 
 ' Bindley v. Martin, 28 W. Va. 773; Reilly v. Barr, 34 W. Va. 950; s. c. 11 
 S. E. Rep. 750; Livesay v. Beard, 22 W. Va. 585; Webb v. Ingham, 29 W. 
 Va. 389; s. c. I S. E. Rep. 816; Sturm v. Chalfant, 38 W. Va. 248; s. c. 18 
 S. E. Rep. 451; Hope V. Salt Co. 25 W. Va. 789; Knight v. Capito, 23 W. 
 Va. 639; Bieme v. Ray, 37 W. Va. 571; s. c. 16 S. E. Rep. 804; Curtain v. 
 Isaacsan, 36 W. Va. 391; s. c. 15 S. E. Rep. 171; Hart v. Sandy, 39 W. Va. 
 644; s. c. 20 S. E. Rep. 665. 
 
ago EQUITY PRINCIPI,BS. 
 
 termining questions of fraud, nor are they in all cases even suffi- 
 cient as evidence to establisli the charge of fraud, but serve as 
 indicia or badges of fraud' and as grounds of inferences, along 
 ■with the other circumstances and facts in the case, from which 
 the charge of fraud may be deduced. Thus, where it becomes 
 necessary for the grantee in a deed attacked as fraudulent tO' 
 establish the payment of the consideration by him to the grantee, 
 his failure to call the persons who made the payments of pur- 
 chase money, and the subscribing witnesses to the deed, by whom, 
 such fact could be proved, and becoming the sole witness to this- 
 fact himself, unless such failure is satisfactorily explained, will 
 be regarded as a badge of fraud; ^ so when a director of a cor- 
 poration claiming to be a creditor thereof has obtained from his 
 co-directors a deed of trust or mortgage upon the corporate prop- 
 erty to the exclusion of other creditors, such transaction will be 
 presumed to be fraudulent, but may be rebutted by clear and 
 convincing proof that the same is fair and reasonable and wholly 
 free from all taint of fraud and unfairness;'' and the fact that the 
 debt or account for labor sought to be charged as a part of the 
 consideration for the conveyance is barred by the statute of 
 limitations at the date of the conveyance is a circumstance to be 
 considered in determining the bona fides of the transaction;' also> 
 when the deed is for a pre-existing debt, it is a badge of fraud 
 for the grantee to retain the evidence of such indebtedness in his 
 possession uncanceled after the conveyance has been completed; * 
 likewise the withholding of material evidence to a fact raises 
 a presumption against the party, if it appears that he could have 
 produced it; ' so where it appears that the instrument attacked 
 as fraudulent, in some particular, is false, this raises a pre- 
 sumption against the bona fides of the transaction; * and wher- 
 ever there appears to be connected with the transaction at- 
 tacked as fraudulent, circumstances indicating excessive effort to 
 give it the appearance of fairness or regularity, which are not 
 
 ■ Knight V. Capito, 23 W. Va. 639. 
 
 ' Hope V. Valley City Salt Co., 25 W. Va. 789; Sweeney v. Grape Sugar 
 Co., 30 W. Va. 443; s. c. 4 S. E. Rep. 431. 
 
 3 Sturm V. Chalfant, 38 W. Va. 248; s. c. 18 S. E. Rep. 451; Knight v> 
 Capito, 23 W. Va. 639. 
 
 < Webb V. Ingham, 29 W. Va. 389; s. c. i S. E. Rep. 816. 
 
 5 Bindley v. Martin, 28 W. Va. 773. 
 
 « Reilly, V. Barr, 34 W. V. 95; s. c. 11 S. E. Rep. 750. 
 
FRAUDULENT CONVEYANCBS. 291 
 
 usual concomitants of sucli business, the court will treat such 
 circumstances as badges of fraud ;^ so the vendor's continuing in 
 possession of goods and chattels after an absolute sale of the 
 same raises a presumption that the sale is fraudulent;* so, too, if 
 after a sale of real estate, the grantor continues to hold possession 
 of the premises, a presumption of fraud is thereby created, but 
 this presumption may be rebutted by a satisfactory explanation 
 of the character of such possession, as by showing that the 
 grantor is holding the land as a renter, and not as the owner, but 
 that he is holding under the grantee in good faith, and not under 
 a secret trust for his own benefit;' and a conveyance to a near 
 relative is calculated to awaken suspicion, causing the transaction 
 to be closely scrutinized, but this of itself is not sufficient to 
 raise a presumption of fraud;* so a conveyance of one's entire 
 property during the pendency of a suit to recover judgment 
 against him on a debt, is a badge of fraud, ^ or the withholding of 
 the conveyance from record.* 
 
 A conveyance made to avoid the effect of a contemplated or exist- 
 ing law-suit is fraudulent and void as to creditors.'' So, where a 
 debtor in failing circumstances conveys his property for an inade- 
 quate consideration, this fact is evidence of a fraudulent intent; 
 and, where the conveyance is without consideration or for a grossly 
 inadequate consideration, of which the grantee has knowledge, 
 the conveyance is fraudulent, and cannot stand against the de- 
 mands of the creditor of the grantor.* 
 
 The declarations of a fraudulent grantor cannot be used against 
 the grantee, unless made in his presence, so as to affect the rights 
 or interests of the grantee.' 
 
 ' Hart V. Sandy, 39 W. Va. 644; s. c. 20 S. E. Rep. 665. 
 
 = Curtain v. Isaacsen, 36 W. Va. 391; s. c. 15 S. E. Rep. 171. See also 
 Blackshire v. Pettit, 35 W. Va. 547; s. c. 14 S. E. Rep. 133; Bindley v. Mar- 
 tin, 28 W. Va. 773. 
 
 3 Blackshire v. Pettit, 35 W,. Va. 547, 14 S. E. Rep. 133. 
 
 •• Bieme v. Ray, 37 W. Va. 571; s. c. 16 S. E. Rep. 804; Douglass v. Doug- 
 lass, 41 W. Va. 13; s. c. 23 S. E. Rep. 671. 
 
 s Butler v. Thompson, 45 W. Va. 660, 31 S. E. Rep. 960. 
 
 « Hutchinson v. First Kat. Bank of Michigan City, 133 Ind. 271, 30 N. E. 
 
 Rep. 952. 
 
 7 State V. Burkeholder, 30 W. Va. 593; s. c. 5 S. E. Rep. 439; Connoway 
 V. McCann, 30 W. Va. 200; s. c. 3 S. E. Rep. 590. 
 
 « Webb V. Ingham, 29 W. Va. 389; s. c. i S. E. Rep. 816, and opinion of 
 the court at page 820 of the Reporter. 
 
 9 Board of Education v. Mitchell, 40 W. Va. 431; s. c. 21 S. E. Rep. 1017; 
 
2g2' EQUITY PRINCIPLES. 
 
 Transactions between father and child, husband and wife, 
 brother and sister, between those among whom exists a strong 
 natural motive to provide for each other, at the expense of credi- 
 tors, when sought to be impeached as fraudulent, require less 
 proof to show fraud and, on the other hand, when a prima facie 
 case is made, much stronger proof to show fair dealing, than 
 would be required if the transaction were between strangers.^ 
 
 § 189. What conveyances fraudulent per se — 
 
 That a court may pronounce a deed fraudulent per se, the in- 
 tent to hinder, delay or defraud the creditors must appear on the 
 face of the instrument. This must appear from an inspection of 
 the deed or other writing, without reference to extrinsic evi- 
 dence.' 
 
 The question as to whether an instrument or conveyance i^ 
 void upon its face nearly always arises where it is given with the 
 ostensible or avowed purpose of securing . or indemnifying some 
 existing creditor of the party giving it, the very effect of which 
 is not to secure the party named, but, under the guise thereof, is 
 to enable the debtor himself to reap the benefit of a covert de- 
 sign, by postponing his creditors, and himself enjoying and con- 
 trolling the property embraced in the conveyance.' Thus, as in 
 the case of I^andman v. Wilson,* two grantors made an assign- 
 ment of their property to secure three classes of creditors named 
 in the deed in the order therein named. In the deed the assets 
 are valued by the grantors, and the deed is silent as to any other 
 creditors than those therein specified, and the value of the prop- 
 erty, as fixed by themselves, far exceeds the amount of the 
 debts secured, and among the property is a flouring-mill by them 
 valued at twenty thousand dollars, almost one-half of their prop- 
 erty, and a provision was inserted in the deed as follows : "And 
 
 Trapnell v. Conklyn, 37 W. Va. 242; s. c. 16 S. E. Rep. 570; Casto v. Fry, 
 33 W. Va. 449; s. c. 10 S. E. Rep. 799. 
 
 • Livey v. Winton, 30 W. Va. 554; s. c. 4 S. E. Rep. 451; Burt v. Timmons, 
 29 W. Va. 441; s. c. 2 S. E. Rep. 780. 
 
 ' Landman v. Wilson, 29 W. Va. 702; s. c. 2 S. E. Rep. 203. 
 
 ' Landman v. Wilson, supra; Rucker v. Moss, 5 W. Va. 527; Garden & 
 Co. V. Bodwing, 9 W. Va. 121; Shattuck v. Knight, 25 W. Va. 590; Claflin 
 V. Foley, 22 W. Va. 434; Livesay v. Beard, 22 W. Va. 585; Klee v. Reitzen- 
 berger, 23 W. Va. 749; Sheppard v. Turpin, 3 Gratt. 373. 
 
 * 29 W. Va. 702, 2 S. E. Rep. 203. 
 
FRAUDUI<ENT CONVEYANCES. 293 
 
 should said trustee deem it to the best interest of said creditors 
 (the secured creditors), he is hereby authorized either to rent or 
 run the mill property for the period of one or more years, or for 
 a greater or less period of time, as shall seem to him advisable 
 after having consulted with said creditors, and obtained their 
 consent, or the majority thereof in interest therein." The court 
 held the deed fraudulent on it face. So, too, in the case of 
 Claflin v. Foley, ^ a deed, conveying a stock of goods and mer- 
 chandise and notes and accounts of a merchant to a trustee to 
 secure the payment of notes not then due, which provided that 
 said conveyance should cover ' 'such goods and merchandise as 
 may be added to said stock, from time to time, by the grantors 
 and brought into the store in course of business or to take the 
 place of such goods as might thereafter be sold;" but did not 
 authorize the trustee to take possession or control of said goods 
 until the grantor had made default in the payment of one or 
 more of said notes and had been requested to do so by the holder 
 or holders of such note or notes, was held as against the un- 
 secured creditors of the grantor to be fraudulent and void on its 
 face, although it provided that the trustee, by himself or by his 
 agent or attorney, should at once take possession of the notes 
 and accounts transferred by such deed and collect the same for 
 the benefit of the trust-creditors. 
 
 An examination of the opinions and reasons upon which the 
 courts rest their decisions that in cases of the character here 
 given the deeds are fraudulent per se, is that they contain such 
 provisions and stipulations as to property that is perishable or 
 readily consumable, as a stock of goods, as to enable the grantor 
 to remain in the possession and control of the property encum- 
 bered with the trust, and to indefinitely postpone the execution 
 of the same, and the subjection of the property therein embraced 
 to the payment of his debts. In fact, it is that the provisions of 
 the conveyance are in contravention of the avowed purposes of 
 the grantor in executing the same.'' 
 
 As a general proposition, whenever a deed of trust, given to 
 secure creditors, contains provisions or stipulations which are in 
 
 » 22 W. Va. 434. 
 
 = Claflin V. Foley, supra, at pages 439-441; Shattuck v. Knight, 25 W. Va., 
 at pages 598, 599; Gardner v. Johnson, 9 W. Va., at page 411; Livesay v. 
 Beard, 22 W. Va., at pages 590, 591. 
 
294 EQUITY PRINCIPLES. 
 
 themselves sufficient to defeat tlie purpose of the conveyance, the 
 instrument is fraudulent and void.* 
 
 The reason for holding such conveyances void upon their face 
 is sharply drawn in the case of Klee v. Reitzenberger," where a 
 trust deed was given on household and kitchen furniture for a 
 debt payable in six months, with a provision in it that the grantor 
 should retain possession of the property until default was made 
 in the payment of the debt at its maturity, and the trustee re- 
 quired to sell; and another trust given about the same time by 
 the same grantor upon a stock of store goods in his store room 
 to secure other creditors with provisions of a similar character 
 as to possession and sale. The court held the former deed of 
 trust valid upon its face, and the latter it held void upon its 
 face. But a provision in a trust deed that the trustee may con- 
 tinue the business of the grantor does not render the instrument 
 fraudulent per se, if intended merely as a means of realizing 
 the trust-fund and with a view of winding up the business; 
 nor does a provision in it that the grantor shall attend to the 
 business, he being under the control of the trustee, who may at 
 any time on demand of the holder of the debts secured make sale 
 of the property, render the conveyance void on its face.^ 
 
 It does not render a conveyance void per se because the exact 
 amount of the debt secured thereby is not stated therein;* nor does 
 a provision in a deed of trust authorizing the trustee to sell the 
 goods embraced therein at private sale, when inserted for the 
 bona fide purpose of realizing for the creditors the largest amount 
 possible, render the deed void upon its face;* neither does the 
 admission to record of the trust deed by the trustee therein, who 
 was the counsel of the grantor in its preparation, render it in- 
 valid;* nor does a provision in a deed of trust, allowing the 
 grantor to replenish the stock of goods embraced in it, render 
 such deed of trust fraudulent.'' 
 
 The fact that some of the debts secured in a conveyance are 
 invalid, will not render the deed invalid as to the other bona fide 
 
 ' Catt V. Wm. Kuabe & Co. Manufacturing Co., 93 Va. 736, 26 S. E. R.ep. 
 246. 
 ' 23 W. Va. 749, 754. 3 Harden v. Wagner, 22 W. Va. 356. 
 
 * Norris V. Lake, 89 Va. 513; s. c. 16 S. E. Rep. 663. 
 5 Kyle V. Harveys, 25 W. Va. 716. 
 " Paul V. Baugh, 85 Va. 935; s. c. 9 S. E. Rep. 329. 
 ' Baer Sons Grocer Co. v. Williams, 43 W. Va. 323, 27 S. E. Rep. 345. 
 
FRAUDUI.ENT CONVBYANCBS. 295 
 
 debts; nor will the fact that the trustee therein named is insol- 
 vent render the deed void per se, but the court may in such case 
 appoint a receiver and administer the trust according to the pro- 
 visions of the deed.^ 
 
 § 190. As to the knoAvledge of the grantee in the convey- 
 ance of the grantor's fraudulent intent — 
 
 A bona fide purchaser of property, that is, one who purchases 
 in good faith for a valuable consideration,'' although from a 
 fraudulent grantor, will hold it against the claims of all creditors 
 of the grantor.' But should he purchase from such a grantor 
 with knowledge of his fraudulent intent, the conveyance cannot 
 stand as against the demands of the creditors of the grantor, 
 though the grantee made his purchase for a valuable considera- 
 tion.* 
 
 When a purchaser has knowledge of any fact sufficient to put 
 him on inquiry as to the existence of some right or title in con- 
 flict with that which he is about to purchase, he is presumed 
 either to have made the inquiry and ascertained the extent of 
 such prior right, or to have been guilty of a degree of negligence 
 equally fatal to his claim to be considered as a bona fide pur- 
 chaser;* and notice to the trustee or agent is notice to the bene- 
 ficiary.* 
 
 In order to charge the creditor or grantee with notice of the 
 fraud of the grantor, direct proof is not necessary, but it may 
 appear from the facts and circumstances in the case.^ Therefore, 
 if the circumstances involved in the making of a fraudulent 
 
 ' Cohn V. Ward, 32 W. Va. 34; s. c. 9 S. E. Rep. 41 ; Zell Guano Co. v. 
 Heatherly, 38 W. Va. 409; s. c. 18 S. E. Rep. 611; Livesay v. Beard, 22 W. 
 Va. 585. 
 
 = Kiger v. Depue, 6 W. Va. 288; i Beach, Mod. Eq. Jur., \\ 386, 389. 
 
 3 Claflin V. Balance, 91 Ga. 411; s. c. 18 S. E. Rep. 309; ante, I 185; Beas- 
 ley V. Bray, 98 N. C. 266; s. c. 3 S. E. Rep. 497- 
 
 * Bishofi V. Hartley, 9 W. Va. 100; Snyder v. Lunsford, 9 W. Va. 223; 
 Lockhard & Ireland v. Beckley, 10 W. Va. 87; Harden v. Wagner, 22 W. 
 Va. 356; Goshom v. Snodgrass, 17 W. Va. 717; Livesay v. Beard, 22 W. Va. 
 
 585. 
 
 5 I Beach, Mod. Eq. Jur., ? 356; Ferguson v. Daugherty, 94 Va. 308, 26 S. E. 
 
 Rep. 822. 
 
 « Douglass Merchandise Co. v. Laird, 37 W. Va. 687; s. c. 17 S. E. Rep. 
 188; I Beach, Mod. Eq. Jur., § 357. 
 
 ^ Core v. Cunningham, 27 W. Va. 206. 
 
2g6 EQUITY PRINCIPI<ES. 
 
 transfer of property are sufficient to put a man of ordinary pru- 
 dence and experience in business transactions on inquiry, lie 
 must be held, thougli a purchaser for value, to have had notice 
 of the fraudulent intent of his vendor.' 
 
 The grantee can do nothing to aid the grantor in the convey- 
 ance, to the detriment of his creditors, and if he does, the trans- 
 action will be treated as fraudulent, even as to the grantee, 
 though the grantee had no purpose to aid the grantor, so as to 
 affect the rights of creditors. Thus, a person cannot purchase 
 the goods of a debtor at a price in excess of his debt, when he 
 knows that such excess so paid such debtor is by the latter to be 
 placed beyond the reach of his other creditors.^ While the 
 property of the debtor in the ownership of a bona fide purchaser 
 cannot be touched to satisfy his creditors, yet if there is any of 
 the purchase-money in his hands remaining unpaid, it may be 
 subjected and applied to such payment.^ 
 
 In Cain v. Cox,* our court holds that ' 'one is considered a pur- 
 chaser for a valuable consideration with notice of another's 
 equity, whenever he has such notice of such facts as would put 
 him on inquiry; for the law imputes to a person knowledge of 
 facts, of which the exercise of common prudence and ordinary 
 diligence must have apprised him." 
 
 Notice of this character is distinguished from actual personal 
 notice by the term constructive notice, but it is as effectual and 
 binding in law as the former." 
 
 § 191, The proof of the consideration for the convey- 
 ance — 
 It rarely occurs that a voluntary conveyance is so on its face. 
 In most cases the deed contains a recital of a valuable considera- 
 tion from the grantee to the grantor, the receipt of which is ac- 
 knowledged in the conveyance. This recital is evidence between 
 the parties to the deed, but not as to creditors, assailing it as 
 fraudulent.^ If a creditor brings a suit to set aside a deed as 
 
 ' Keneweg Co. v. Shilansky (W. Va.), 34 S. E. Rep. 773. 
 
 = Hart V. Sandy, 39 W. Va. 644; s. c. 20 S. E. Rep. 665. 
 
 3 Lockhard & Ireland v. Beckley, 10 W. Va. 87. * 23 W. Va. 594. 
 
 5 Idem, p. 609; Ferguson v. Daugherty, 94 Va. 308; s. c. 26 S. E. Rep. 
 822. 
 
 « Childs V. Hurd, 32 W. Va. 68; s. c. 9 S. E. Rep. 362; Spence v. Smith, 34 
 W. Va. 697; s. c. 12 S. E. Rep. 828; Cohn v. Ward, 32 W. Va. 34; s. c. 9 S. 
 
FRAUDULENT CONVEYANCES. 297 
 
 fraudulent, and charges in his bill that it was made without con- 
 sideration, the burden of proving that it was made for a valuable 
 consideration is on the defendant, although the answer denies the 
 allegation in the bill of want of consideration.^ But, when the 
 consideration is admitted, or properly established by proof, then 
 the burden of proving the deed fraudulent in fact is upon the 
 creditor who assails it.^ 
 
 Where a conveyance is assailed as fraudulent, the party claim- 
 ing under it may show the real consideration for it, though it may 
 be different from that recited therein as the true consideration. 
 Thus, if the deed recites a consideration of one dollar, it may be 
 shown that there were other or additional considerations given for 
 the conveyance.' 
 
 § 192. Voluntary conveyances, and wrhen they may be as- 
 sailed by the creditors of the grantors — 
 
 A voluntary conveyance is one without valuable consideration, 
 such as a deed or settlement in favor of a wife or child.* No 
 voluntary gift or conveyance by a party to his child or other per- 
 son can be upheld against his creditors, and the property will be 
 subjected to the payment of his debts. * A mere voluntary con- 
 veyance is not, for that reason only, void as to subsequent cred- 
 
 E. Rep. 41; Rogers v. Verlander, 30 W. Va. 619; s. c. 5 S. E. Rep. 847; Hi- 
 man V. Thorn, 32 W. Va. 507; s. c. 9 S. E. Rep. 930; Knight v. Captio, 23 
 W. Va. 639., 
 
 ' Rogers v. Verlander, supra; Himan v. Thorn, supra. In the case of 
 Rogers V. Verlander, Green, J., enters into a full discussion, why the burden 
 of showing a valuable consideration is upon the defendant when the deed is 
 attacked by creditors as voluntary. He bases this conclusion both upon rea- 
 son and authority. This is the leading case on this question, and has since 
 been followed by the court in Cohn v. Ward, 32 W. Va. 34, 9 S. E. Rep. 41; 
 Childs V. Hurd, 32 W. Va. 68; s. c. 9 S. E. Rep. 362; Himan v. Thorn, 32 W. 
 Va. 507, 9 S. E. Rep. 930; Spence v. Smith, 34 W. Va. 697, 12 S. E. Rep. 828; 
 Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. i. See the recent case of Butler 
 V. Thompson, 45 W. Va. 660, 31 S. E. Rep. 960, where the doctrine an- 
 noimced in the text is reiterated, and the cases here cited in support of it 
 are quoted and approved. 
 
 = Cohn V. Ward, supra. 
 
 3 Casto V. Fry, 33 W. Va. 449; s. c. 10 S. E. Rep. 799. 
 
 « Black's Law Die. 1227. 
 
 'Sterling v. Wilkinson, 83 Va. 791; s. c. 3 S. E. Rep. 533; Chamber- 
 layne v. Temple, 2 Rand. 384; Lockhart & Ireland v. Beckley, 10 W. Va. 87; 
 Rogers v. Verlander, 30 W. Va. 619; s. c. 5 S. E. Rep. 847; Wick v. Dawson, 
 42 W. Va. 43. 24 S. E. Rep. 587. 
 
298 EQUITY PRINCIPLBS. 
 
 itors of the grantor.^ There must be proved by such subsequent 
 creditors an actual fraudulent view or intent by proving addi- 
 tional circumstances sufficient to show fraud in fact.* Therefore, 
 if a man without any fraudulent intent and not indebted at the 
 time, make a voluntary settlement of real estate upon his wife, 
 and he afterwards becomes insolvent, such voluntary settlement 
 will not, for that cause alone, be set aside in favor of subsequent 
 creditors of the husband.' But such a conveyance, which was in 
 fact made with a fraudulent intent, is void both as to existing 
 and subsequent creditors,* and in such a case the deed may be set 
 aside at the instance of subsequent creditors as well as by ex- 
 isting ones.° 
 
 To constitute a valuable consideration, it must be one of a 
 pecuniary nature or one readily convertible into money, or it may 
 be one founded upon marriage.* And it must be for a considera- 
 tion moving from the grantee, or some person other than the 
 grantor himself. Thus, a conveyance in consideration of the 
 earnings of a minor child that belong to the father, will not sup- 
 port a conveyance from the father to the child,' nor from the hus- 
 band to the wife in consideration of property of the wife of which 
 the husband has become the lawful owner at the time of the con- 
 veyance.' But the relinquishment of the wife's inchoate right of 
 dower will support a conveyance from the husband to her in con- 
 sideration of such relinquishment, if the value of the land so 
 conveyed to her is not in excess of the value of such dower.' 
 
 After the lapse of five years, a voluntary conveyance, on the 
 mere ground that it is voluntary, cannot be set aside. ^° If the 
 
 ' McClaugherty v. Morgan, 36 W. Va. 191; s. c. 14 S. E. Rep. 992; Greer 
 V. O'Brien, 36 W. Va. 277; s. c. 15 S. E. Rep. 74; Arnold v. Slaughter, 36 W. 
 Va. 589; s. c. 15 S. E. Rep. 250; Bronson v. Vaughan, 44 W. Va. 406, 29 S. 
 E. Rep. 1022. 
 
 ' Bronson v. Vaughan, supra. ' Bank v. Wilson, 25 W. Va. 242. 
 
 « Silverman v. Greaser, 27 W. Va. 550; Core v. Cunningham, 27 W. Va.. 
 206; Duncan v. Custard, 24 W. Va. 730. 
 
 5 Rogers v. Verlander, 30 W. Va. 619; s. c. 5 S. E. Rep. 847. 
 
 • I Par. Cont. 431. 
 
 ? Halliday v. Miller, 29 W. Va. 424; s. c. i S. E. Rep. 821. 
 
 * Clarke v. King, 34 W. Va. 631; s. c. 12 S. E. Rep. 775. 
 
 9 Glascock V. Brandon, 35 W. Va. 84; s. c. 12 S. E. Rep. 1102. See, also. 
 Fry V. Casto, 33 W. Va. 449, 10 S. E. Rep. 799. 
 
 "> Humphrey v. Spencer, 36 W. Va. 11; s. c. 14 S. E. Rep. 410; Himan v. 
 Thorn, 32 W.Va. 507; s. c. 9 S. E. Rep. 930; McCue's Trustees v. Harris, 86 Va. 
 687; s. c. 10 S. E. Rep. 981; Scraggs v. Hill, 43 W. Va. 162, 27 S. E. Rep. 310. 
 
FEAUDUIvENT CONVEYANCES. 299 
 
 deed, tliougli voluntary, was made with a fraudulent intent, it 
 may be set aside after tlie lapse of five years,' unless it is a trans- 
 fer of personal property whicli has remained in the actual, un- 
 disturbed and continuous possession of the purchaser for five 
 years, and such purchaser has not in anyway, nor by any means, 
 direct or indirect, obstructed the creditors of the party making the 
 fraudulent transfer.'' 
 
 § 193. Conveyances made to the w^ife during coverture — 
 
 It is well settled by the authorities and the decisions in this 
 state, and elsewhere, that when a conveyance is made to a wife 
 during coverture, the presumption is that the consideration was 
 paid or furnished by the husband, and the burden of showing 
 the contrary is with her when the conveyance is assailed by the 
 creditors of the husband.^ 
 
 If a suit is brought to set aside a conveyance made to her 
 during coverture, it must be shown, in order that the same may 
 be sustained as against the demands of her husband's creditors, 
 that the land was paid for with funds not furnished by her 
 husband.* Mere evidence that she purchased amounts to nothing 
 unless she clearly shows that she paid for it out of her own sep- 
 arate funds, or out of funds not belonging to her husband.* 
 
 § 194. Improvements made by the husband upon the ■wife's 
 land — 
 If the husband expends money in making improvements on the 
 separate estate of his wife, though done without any fraudulent 
 
 ' Himan v. Thorn, supra; Hutchinson v. Boltz, 35 W. Va. 754; s. c. 14 S. 
 E. Rep. 267; Hunter v. Hunter, 10 W. Va. 321; Glascock v. Brandon, 35 W. 
 Va. 84; s. c. 12 S. E. Rep. 1102; Welsh v. Solenberger, 85 Va. 441; s. c. 8 S. 
 E. Rep. 91. 
 
 " Thomburg v. Bowen, 37 W. Va. 538; s. c. 16 S. E. Rep. 825. 
 
 3 Grant v, Sutton, 90 Va. 771; s. c. 19 S. E. Rep. 781; I<ivey v. Winton, 30 
 W. Va. 451; Hutchinson v. Boltz, 35 W. Va. 754; s. c. 14 S. E. Rep. 267; 
 Burt V. Timmons, 29 W. Va. 441; s. c. 2 S. E. Rep. 780; Mahew v. Clark, 33 
 W. Va. 387; s. c. 10 S. E. Rep. 785; Maxwell v. Henshaw, 24 W. Va. 405; 
 Walker's Adm'x v. Peck, 39 W. Va. 325; s. c. 19 S. E. Rep. 411. 
 
 ■• Burt V. Timmons, supra; McMaster v. Edgar, 22 W. Va. 671 ; Stockdale v. 
 Harris, 23 W. Va. 499; Duncan v. Custard, 24 W. Va. 730; Maxwell v. Hen- 
 shaw, 24 W. Va. 403; Rose v. Brown, 11 W. Va. 122; Hertzog v. Weiler, 24 
 W. Va. 29; Webb v. Ingham, 29 W. Va. 389; s. c. i S. E. Rep. 816. 
 
 5 Rose & Co. V. Brown, 11 W. Va. 122; Robins v. Armstrong, 84 Va. 810; 
 s. c. 6 S. E. Rep. 130. 
 
300 EQUITY PRINCIPLES. 
 
 intent in fact, the land will be charged with these improvements 
 to the extent of their value for debts of the husband existing at 
 the time such improvements were made on such land.^ Interest 
 on the money invested in these improvements should be allowed 
 only from the commencement of the suit to subject them to the 
 payment of the husband's debts.* In such a case, in the absence 
 of actual fraudulent intent, the value of the property, less the 
 value of permanent improvements made with the husband's 
 means, should be ascertained, and also the value of such improve- 
 ments; and in case of sale, and inadequacy of its proceeds to pay 
 both values, the creditors and wife should share therein, ratably, 
 on the basis of such values.' 
 
 § 195. As to antenuptial settlements — 
 
 The statute of frauds requires that every contract made upon 
 the consideration of marriage shall be in writing and signed by 
 the party to be charged or his agent.* And the contract is only 
 valid as against the creditors and purchasers of the husband from 
 the time it is duly admitted to record.* 
 
 Where an antenuptial settlement in consideration of marriage 
 has been made, the burden of showing that it was made to the 
 wife with the intent to defraud the husband's creditors, and 
 that the wife had knowledge of such fraud, rests with the party 
 assailing such settlement.* And this is the case irrespective of 
 the amount of the husband's indebtedness, and even though his 
 whole estate is included in the settlement.' Such settlement 
 cannot be attacked by existing creditors, except for fraud par- 
 ticipated in by both parties.^ 
 
 § 196. As to postnuptial settlements — 
 
 Postnuptial settlements and contracts stand upon a different 
 footing as to the presumptions touching their validity thaii do 
 
 ' Humphrey v. Spencer, 36 W. Va. 11; a. c. 14 S. E. Rep. 410; Burt -i. 
 Timmons, 29 W. Va. 441; s. c. 2 S. B. Rep. 780; Bank v. Wilson, 24 W. Va. 
 242. 
 
 " Humphrey v. Spencer, supra. 3 Humphrey v. Spencer, supra. 
 
 * Code, chap. 98, sec. i, el. 5. s Code, chap. 74, sec. 4. 
 
 « Noble V. Davies, (Va.), 4 [S. E. Rep. 206; Moore v. Butler, 90 Va. 683; 
 s. c. 19 S. E. Rep. 850. 
 
 ' Noble V. Davies, supra. 
 
 " Boggess V. Richards, 39 W. Va. 567, 20 S. E. Rep. 599. 
 
FRAXJDTJIyENT CONVEYANCES. 3OI 
 
 those made before the marriage of the parties. All postnuptial 
 settlements made upon the wife are presumed to be voluntary, 
 and the burden of proving that they were upon a valuable con- 
 sideration is upon those claiming under them.^ 
 
 ' ' Every postnuptial settlement, where the husband is indebted 
 at the time it is made, is, as against his creditors, fraudulent 
 and void; and such settlement will be taken as voluntary, unless 
 those claiming under it can show that it was made for a valuable 
 consideration. " ^ 
 
 In such a case, when the bill charges that a deed was volun- 
 tary and fraudulent, the answer of the husband and wife, deny- 
 ing the fraud and setting up the defense of valuable considera- 
 tion, is not evidence for the respondent, but the defense must be 
 estabhshed by proof. ^ And if made for a valuable consideration, 
 but with a fraudulent intent on the part of the husband of which 
 the wife had notice, it cannot stand as against the creditors of 
 the former.* But if made in good faith for a valuable considera- 
 tion, as for the rehnquishment of an expectant right of dower, 
 the settlement is valid and will be upheld against the creditors 
 of the husband if the amount of the settlement is commensurate 
 with the value of the property or right given in consideration of 
 the settlement.* 
 
 § 196a. Agreements of separation between husband and 
 ■wife — 
 
 There is another class of postnuptial contracts between hus- 
 band and wife, not strictly belonging to the subject of fraudulent 
 conveyances, but inasmuch as we have just concluded the con- 
 sideration of that class of contracts, so far as they relate to credi- 
 tors, we may here properly consider the validity of contracts of 
 separation between husband and wife, so far as they mutually 
 concern each other. 
 
 ' Massey v. Yancey, 90 Va. 626; s. c. 19 S. E. Rep. 184; DeFarges v. Ry- 
 land, 87 Va. 404; s. c. 12 S. E. Rep. 805; Glascock v. Brandon, 35 W. Va. 
 84; s. c. 12 S. E. Rep. 1102; Robins v. Armstrong, 84 Va. 810; s. c. 6 S. E. 
 Rep. 130. 
 
 ' Flynn v. Jackson, 93 Va. 341, 25 S. E. Rep. i. 
 
 Spink, Brother & Co. v. Denny, 75 Va. 663; Blow v. Maynard, 2 I/cigh, 
 30; Hatcher v. Crew, 78 Va. 460. 
 
 * Witz V. Osbom, 83 Va. Z27. 
 
 5 Ficklin's Adm'r v. Rixey, 89 Va. 832; s. c. 17 S. E. Rep. 325; Keagy v. 
 Trout, 85 Va. 390; s. c. 7 S. E. Rep. 329. 
 
302 BQUITY PRINCIPI<BS. 
 
 It was formerly held by the courts that all contracts between 
 husband and wife for their separation were void as against public 
 policy and in derogation of the marriage relation.^ And in such 
 case it made no difference whether the agreement contemplated 
 an immediate separation or a separation in the future, or what the 
 cause of the separation was.^ 
 
 But there has been a complete change in the views of the courts 
 on this subject, both in England and this country,' so that now it 
 may be laid down as a general rule that the courts will enforce cove- 
 nants or promises in agreements of separation relating to the main- 
 tenance of the wife and other collateral engagements, provided the 
 separation has actually taken place at the time of the agreement, 
 or immediately follows the agreement, if the consideration for the 
 agreement, in the light of all the circumstances of the parties 
 at the time it is made, is fair, reasonable and just.* But an 
 agreement or contract of this character which contemplates a 
 future separation, is not sanctioned by the law and is therefore 
 void.^ The most of the authorities and especially the earlier 
 ones examined and cited in the foot-notes contemplate the inter- 
 position of a trustee in the formation of a contract of separation, 
 and the adoption of this method is advised in contracts of this 
 character;' though it is not at all essential in a court of equity to 
 their validity.'' If the contract so provides and is supported by 
 
 » Tiffany's Persons & Dom. Relations, i68. ' Idem. 
 
 3 Idem, 169; Clark v. Posdick, 118 N. Y. 7, 22 N. E. Rep. iiii, 6 L. R. A. 
 132, note. 
 
 « Carson v. Murray, 3 Paige, 483, 3 Law. ed. 241 and note; Petit v. Petit, 
 107 N. Y. 677, 14 N. E. Rep. 500; Clark v. Posdick, supra; Barnes v. Barnes, 
 104 N. C. 613, 10 S. E. Rep. 304; Garver v. MUler, 16 Ohio St. 527; Bettle v. 
 Wilsen, 14 Ohio 257; Thomas v. Brown, 10 Ohio St. 247; Switzer v. Switzer, 
 26 Gratt. 574; Harshberger v. Alger, 31 Gratt. 52; Sayles v. Sayles, 21 N. H. 
 312, 53 Am. Dec. 210; Squires v. Squires, 53 Vt. 211; Randall v. Randall, 37 
 Mich. 572; I Beach, Mod. Eq. Jur., ? 194; Carey v. Mackey, 82 Me. 516, 9 L. 
 R. A. 113, note; 2 Pomeroy, Eq. Jur. (2d ed.), ? 932. 
 
 5 Mercien v. The People, 25 Wend. 77, 14 Law. ed., at p. 774, 35 Am. Dec. 
 663; Carson v. Murray, supra; Rogers v. Rogers, 4 Paige, 516, 3 Law. ed. 
 541; Tiffany's Persons & Domestic Relations, 170. 
 
 « Carson v. Murray, 3 N. Y. Ch. (Law. ed.) 242, note; Rogers v. Rogers, 
 3 N. Y. Ch. 542, note. 
 
 ^ Garver v. Miller, supra; Livingston v. Livingston, 2 John. Ch. 537, i N. 
 Y. Ch. (Law. ed.) 479 and note; Garlick v. Strong, 3 Paige, 440, 3 N. Y. Ch. 
 (Law. ed.) 223, note; Shepard v. Shepard, 7 John. Ch. 57, 2 N. Y. Ch. (Law. 
 ed.) 219; I Beach, Mod. Eq. Jur., § 198. See also 2 Pomeroy, Eq. Jur. (2d 
 sd.), § 932 and notes. 
 
FRAUDULENT CONVEYANCES. 303 
 
 a proper consideration, the wife can assert no further claim upon 
 the property rights of the husband either for her support or in 
 its distribution at his death. ^ 
 
 § 197. When a conveyance will stand as an indemnity 
 for the consideration advanced by the grantee, 
 though the same be set aside as to creditors — 
 
 It sometimes happens that a tranfer is made for a considera- 
 tion that is inadequate when compared with the value of the 
 property embraced in the conveyance. In such a case, if the 
 grantee had no notice of any fraud on the part of the grantor, 
 the conveyance will stand as a security for the amount of the 
 consideration; but if the transfer was made for the purpose of 
 hindering, delaying or defrauding the creditors of the grantor, 
 and was participated in by the grantee, the deed or conveyance 
 win be set aside in toto as to the grantor's creditors, and will not be 
 permitted to stand as security or indemnity for the consideration, 
 though a bona fide consideration to the extent of its amount or 
 value. ^ 
 
 § igS. As to purchasers from a fraudulent grantor or 
 grantee — 
 
 As we have already seen,' although the grantor may intend a 
 fraud by his transfer or conveyance, yet if the grantee is a bona 
 Jide purchaser, his title is not affected by the fraud of the grantor. 
 But when the party assaihng the conveyance has shown that it 
 was made with the intent to delay, hinder or defraud creditors, 
 then the grantee must meet this by showing that he was a pur- 
 chaser for value, and without notice of the fraudulent intent of 
 his grantor; and the recital in the deed of the payment of the 
 purchase-money is not sufficient.* A purchaser from a fraudulent 
 grantee, with notice of the invahdity of his grantor's title, acquires 
 no better right than that held by such grantor, and the convey- 
 ance will not stand as against the creditors of the original 
 grantor.* 
 
 ' Garver v. Miller, supra; i Beach, Mod. Eq. Jur., \\ 196, 197. 
 
 ^ Webb V. Ingham, 29 W. Va. 389; s. c. i S. E. Rep. 816; Livesay v. 
 Beard, 22 W. Va. 585; Bank v. Wilson, 25 W. Va. 242; Burton v. Gibson, 32 
 W. Va. 406; s. c. 9 S. E. Rep. 255. 
 
 3 Ante, I 190; Goshorn v. Snodgrass, 17 W. Va. 717. 
 
 4 Blackshire v. Pettit, 35 W. Va. 547; s. c. 14 S. E. Rep. 133. 
 
 5 Spence v. Smith, 34 W. Va. 697; s. c. 12 S. E. Rep. 828; Clark v. Gordon, 
 35 W. Va. 735; s. c. 14 S. E. Rep. 255. 
 
304 EQUITY PRINCIPLES. 
 
 If a fraudulent grantee of property has conveyed the same 
 away to a dona Jide ■purchaser, the money received by such grantee 
 on such conveyance may be subjected to the payment of the 
 debts of the original grantor at the instance of his creditors.^ 
 
 § 199. Lien acquired on property of fraudulent debtor by 
 creditor assailing the same as fraudulent — 
 
 A party who sues to set aside a conveyance or transfer of prop- 
 erty on the ground that the same was made to delay, hinder or 
 defraud the creditors of the grantor, has a lien upon the property 
 covered by the deed if he succeeds in setting the same aside from 
 the time of filing his bill, and is entitled to be first paid out of 
 the proceeds of the sale of the property if there are no valid prior 
 liens thereon.'' If the conveyance is assailed by answer or peti- 
 tion, the lien dates from the time of filing the answer or petition.^ 
 But where a deed had been made to secure several different 
 debts coming to different parties, some of which are bona fide and 
 the others fraudulent, and the deed is set aside as to those that 
 are fraudulent, this does not give the party attacking the con- 
 veyance priority as to his debt over those debts in the deed of 
 trust that are bona fide, but the whole property remains to an- 
 swer their demands according to the deed.* 
 
 Of course, if the grantor, in such a case, were insolvent, the 
 bona fide creditors would share pro rata if the parties bring them- 
 selves within the terms and requirements of the statute forbid- 
 ding preferences among creditors by insolvent debtors. So, too, a 
 bona fide prior lien, created in any of the modes pointed out by 
 
 ' Ringold V. Suiter, 35 W. Va. 186; s. c. 13 S. E. Rep. 46; Hinton v. Ellis, 
 27 W. Va. 422. 
 
 ' Richardson v. Ralphsnyder, 40 W. Va. 15; s. c. 20 S. E. Rep. 854; State 
 V. Bowen, 38 W. Va. 91; s. c. 18 S. E. Rep. 375; Clark v. Figgins, 31 W. Va. 
 156; s. c. 5 S. E. Rep. 643. 
 
 3 Richardson v. Ralphsnyder, supra; Sweeney v. Grape Sugar Co., 30 W. 
 Va. 443; s. c. 4 S. E. Rep. 431. In the former of these cases, the court holds 
 that a creditor may file his petition in a cause pending, which has for its ob- 
 ject the vacation of a fraudulent conveyance, and, upon proper allegations, 
 be made a party to the suit, and the bill, exhibits, answers, depositions, or- 
 ders and decrees, and all the proceedings in said cause, may, upon proper 
 prayer, be read as part of his petition. 
 
 * Cohn V. Ward, 36 W. Va. 516; s. c. 15 S. E. Rep. 140; Zell Guano Co. v. 
 Heatherly, 38 W. Va. 409, 18 S. E. Rep. 611; Ruffner v. Welton Coal & Salt 
 Co., 36 W. Va. 244; s. c. 15 S. E. Rep. 48. 
 
FRAUDULENT CONVRYANCBS. 305 
 
 the law, would retain its priority, notwithstanding the fact that 
 the conveyance has been successfully attacked as fraudulent 
 against the grantor's creditors.^ 
 
 § 200. As to a preference among creditors of an in- 
 solvent — 
 
 In the absence of a statute to the contrary, an insolvent debtor 
 or one in failing circumstances, may prefer one creditor to an- 
 other without committing fraud, within the statute, upon the 
 creditors who are delayed or hindered by the transfer. Nor does 
 it matter that in such a case the conveyance defeats all other 
 creditors of their legal remedies, and though they be a majority 
 in number and value.' But our statute now forbids an insolvent 
 debtor from giving a preference to any of his creditors in any 
 manner whatsoever.' 
 
 A person is not insolvent within the meaning of our statute 
 unless all of his property is insufficient to pay all of his debts.* 
 
 The mere fact of insolvency forbids the creation of a prefer- 
 ence among any of a debtor's creditors; and the method by which 
 the preference is effected, or the want of notice of insolvency 
 by the creditor preferred, is immaterial.' 
 
 The statute prohibiting the creation of preferences applies to 
 any property owned by the insolvent debtor — real estate as well 
 
 ' Farmer's Bank v. Corder, 9 W. Va. 232; s. c. 9 S. E. Rep. 220; Davis 
 V. Bonney, 89'Va. 775; s. c. 17 S. E. Rep. 229. 
 
 » Harden v. Wagner, 22 W. Va. 356; Motley v. Frank, 87 Va. 432; s. c. 14 
 S. E. Rep. 26; Barton's Ex'r v. Brent, 87 Va. 385; s. c. 13 S. E. Rep. 29. 
 
 3 Code, chap. 74, sec. 2, amended by acts of 1895, pp. 12, 13; Zell Guano 
 Co. V. Heatherly, 38 W. Va. 409; s.c. 18 S. E. Rep. 611. Statutes forbidding 
 preferences by certain classes of debtors and under certain conditions and 
 circmnstances, have been passed in several different states of the Union, 
 among which are Wisconsin, Michigan, Minnesota, Maryland, Kentucky, 
 North Carolina and Massachusetts. See the following decisions: Ensor v. 
 Kerch & Gore, 64 Md. 378, i Atl. Rep. 756; Line- Weaver v. Slag Co., 64 Md. 
 465, 2 Atl. Rep. 693; First Nat'l Bank v. Knowles, 67 Wis. 373; Atkinson v. 
 Weidner, 79 Mich. 575, 44 N. W. Rep. 1042; Kendall v. Bishop, 76 Mich. 
 634; Gore V. Ray, 73 Mich. 385; Baumann v. Cunningham, 48 Minn. 202; 
 Williamson v. Hatch, 55 Minn. 344; Meir v. FHnsbach, 95 Ky. 139; Far- 
 thing v. Carrington, ii5N. C. 315, 22 S. E. Rep. 9; Chipman v. McClellan, 
 159 Mass. 363, 34 N. E. Rep. 379. 
 
 ♦ Wolf V. McGugin, 37 W. Va. 552; s. c. 16 S. E. Rep. 797. 
 
 s Wolf V. McGugin, supra. 
 20 
 
3o6 BQUITY PRINCIPLES. 
 
 as personal, and it is not material what form the preference may- 
 assume.' 
 
 Thus a sale in consideration of an antecedent debt * or a con- 
 fessed judgment with execution issued thereon, intending to 
 thereby create a preference;' a deed of trust given to secure 
 future repairs to be made upon property, when it does not ap- 
 pear that such repairs, though actually made, have added to or 
 enhanced the value thereof;* and under our former and original 
 act against preferences,* a deed of trust given to secure a present 
 loan of money to an insolvent could not be upheld.® It is other- 
 wise under the later act' amendatory of the original act.* 
 
 The law does not avoid the instrument giving the preference 
 in toto, but only defeats the preference and preserves the gift, 
 sale, conveyance or charge intact for the benefit of all the cred- 
 itors of the insolvent debtor.' 
 
 § 201. 'When an instrument or act creating a preference 
 among creditors must be assailed by the unse- 
 cured creditors. 
 
 The act against the creation of preferences provides that the 
 transfer or charge made by the insolvent shall be valid unless a 
 creditor of such insolvent debtor shall institute suit to avoid the 
 same within one year after the transfer or charge is made; and 
 if admitted to record within eight months after such transfer or 
 charge is made, then such suit must be brought within four 
 months after the same has been recorded.^" 
 
 But this limitation upon the right of a creditor to assail a con- 
 veyance on the ground that it creates a preference, does not 
 apply to any debts created prior to the act as amended by the 
 legislature in 1895." 
 
 And there will be no pro rata distribution of the property of 
 
 ' Argand Refining Co. v. Quinn, 39 W. Va. 535; s. c. 20 S. E. Rep. 576. 
 ' Wolf V. McGugin, supra. 
 
 3 Mack V. Prince, 40 W. Va. 324, 21 S. E. Rep. 1012. 
 < Lawyer v. Barker, 45 W. Va. 468, 31 S. E. Rep. 964. 
 s Code, chap. 74, sec. 2. 
 
 " Baer Sons Grocer Co. v. Williams, 43 W. Va. 323, 27 S. E. Rep. 345. 
 ' Acts 1895, chap. 4. 8 Baer Sons Grocer Co. v. Williams, supra. 
 
 9 Kumer v. O'Neil, 39 W. Va. 515; s. c. 20 S. E. Rep. 589; Wolf v. Mc- 
 Gugin, supra. »° Acts 1895, pp. 12, 13. 
 ■" Casto V. Greer, 44 W. Va. 332, 30 S. E. Rep. 100. 
 " Casto V. Greer, 44 W. Va., 332, 30 S. E. Rep. 100. 
 
FRAUDULENT CONVEYANCBS. 307 
 
 an insolvent debtor among his creditors except as to those unit- 
 ing in a suit to avoid such preference and agreeing to contribute 
 to the expenses thereof; but the one attempting to sustain such 
 preference shall not share in the pro rata distribution of the 
 property of the insolvent.^ 
 
 § 202. Transactions to which the statute forbidding pref- 
 erences does not apply — 
 
 The act forbidding an insolvent debtor to prefer any of his 
 creditors does not apply so as to prevent the making of a prefer- 
 ence as security for the payment of purchase-money or a bona 
 fde loan of money, or other bona fide debt contracted at the time 
 such transfer or charge was made, or as security for one who, at 
 the time of such transfer or charge, becomes an indorser or 
 surety for the pajonent of money then borrowed; and the statute 
 does not afEect any transfer of bonds, notes, stocks, securities, or 
 "Other evidences of debt, in payment of or as collateral security 
 for the payment of a bona fide debt, or to secure any indorser or 
 surety, whether such transfer is made at the time such debt is 
 contracted or indorsement made, or for the payment or security 
 of a pre-existing debt.' 
 
 And an insolvent may make disposition of his property in the 
 following manner, without infringing the law against the creation 
 of preferences among the creditors of an insolvent debtor: 
 
 First. He may sell to a bona fide purchaser for value. 
 
 Second. He may convey all of his property, to secure all of his 
 creditors /r(!7 rata. 
 
 Third. He may transfer his property, to satisfy specific liens 
 upon the property involved, provided the transfer is made in 
 good faith and for the value of the interest which the owner may 
 have in the premises.' 
 
 § 203. The effect and policy of the lavi^ forbidding an in- 
 solvent debtor to prefer any of his creditors — 
 
 The plain purpose of this statute is that, when a person comes 
 to that degree of financial embarrassment that his property is not 
 equal to the full payment of his debts, his property shall not, by 
 his own acts, go to some creditors to the prejudice of others, but 
 
 ■ Acts 1895, p. 13. " Idem. 
 
 3 Johnson v. Riley, 41 W. Va. 140, 23 S. E. Rep. 698, 700. 
 
3o8 EQUITY PRINCIPI<ES. 
 
 shall go to all; and if he does an act devoting it to them, or any 
 of them, they may all share ratably in the benefit and loss.' 
 
 The law was simply designed to take away the common-law 
 right of an insolvent to prefer one or more of his creditors to the 
 exclusion of others. 
 
 If an insolvent has made a charge upon his property resulting 
 in a preference to some of his creditors, a court of equity may 
 take such property into its custody and control and administer it 
 for the pro rata payment of the proceeds of its sale to all the 
 creditors;' but if there has been a bona fide sale of the property, 
 though to a creditor of the insolvent debtor, the title of the pur- 
 chaser will not be disturbed, but the court will administer the 
 proceeds of such sale/w rata among all the creditors.' 
 
 The statute does not avoid the instrument transferring or 
 charging the property of the insolvent debtor, but only the pref- 
 erence thereby created, treating it as made for the benefit of all 
 the creditors, except as to those attempting to uphold it.* But 
 where property is incumbered to its full value by reason of prior 
 liens thereon, an insolvent debtor may convey it in sa'tisfaction of 
 such prior liens, without rendering it subject to the law against 
 preferences,^ inasmuch as such conveyance is not to the exclusion 
 or prejudice of other creditors, but is only in effect the surrender 
 of a valueless equity of redemption.' 
 
 An examination of this law and the decisions rendered by our 
 court construing it, will clearly show that it does not materially 
 affect or alter the law against fraudulent conveyances as con- 
 tained in chapter seventy-four of the Code of this state. 
 
 The latter class of transfers or charges are wholly void as to 
 creditors, and can in nowise stand between them and the prop- 
 erty to which they relate; while the former are invalid as to the 
 preference they create, and only then when assailed in the time 
 and manner provided by law. If there has been a fraudulent 
 transfer, charge or conveyance made by a debtor with reference 
 to the rights of his creditors, the law against preferences by an 
 insolvent among his just creditors has no application. The law 
 in this regard is as it always has been. 
 
 This is certainly the case under the law as amended in 1895, 
 
 » Wolf V. McGugin, supra. ' Idem. 3 Kumer v. O'Neil, supra. 
 
 < Acts, 1895, pp. 12, 13; Eumer v. O'Neil, supra. 
 
 5 Johnson v. Riley, 41 W. Va. 140, 23 S. E. Rep. 698. « Idem. 
 
FRAUDULENT CONVSYANCBS. 309 
 
 after the lapse of one year after the creation of the preference. 
 But our court in First National Bank v. Parsons,^ decided under 
 the law as passed in 1891, holds that where an insolvent debtor 
 gives or attempts to give his creditor any 'preference, the instru- 
 ment creating such preference will be dealt with by the court as 
 required by the law forbidding preferences, whether the insolvent 
 debtor has acted in good faith in attempting to make such prefer- 
 ence or has been guilty of a fraudulent intent. This would seem 
 to be in keeping with the spirit and intention of the statute, as it 
 is immaterial as to the motive of the debtor in creating the 
 preference, as it is the act of preference alone which is forbidden, 
 and, further, the law as theretofore existing relieved against 
 the fraudulent acts of a debtor done to the prejudice of his 
 creditors.^ 
 
 Where an insolvent has made a fraudulent transfer of his prop- 
 erty in an attempt to create a preference, there is no prior lien in 
 favor of him who first assails it, under the law of 1891.' But 
 such prior Uen certainly would be created in such case after the 
 lapse of one year in favor of him who first assails it, when the 
 suit is brought after one year from the execution of the instrument 
 creating the preference, or after the lapse of four months from 
 its admission to record, if recorded within eight months after its 
 execution. 
 
 ■ 42 W. Va. 137, 24 S. E. Pep. 554. 
 
 ' In tliis case of First National Bank v. Parsons, the court lays down the 
 course to be pursued where the insolvent has made a fraudtilent sale and all 
 the purchase-money has been paid, or in case of a sale for an inadequate con- 
 sideration. 
 
 3 Idem. 
 
3IO EQUITY PRINCIPLES. 
 
 CHAPTER XIX. 
 GIFTS AND ADVANCEMENTS. 
 
 ? 204. The essentials of a valid gift. 
 
 205. The delivery of the subject-matter of the gift. 
 
 206. Constructive delivery of a gift. 
 
 207. Gifts of promissory notes, checks and the like. 
 
 208. As to gifts causa mortis. 
 
 209. As to gifts between near relatives and to fiduciaries. 
 
 210. As to what constitute possession by the donee. 
 
 211. The evidence required to establish a gift. 
 
 212. When a court of equity will aid in rendering gifts effective. 
 
 213. What constitutes an advancement. 
 
 214. How and to whom advancements are chargeable. 
 
 215. The evidence to show the existence of an advancement. 
 
 § 204. The essentials of a valid gift — 
 
 Wliile there are two kinds of gifts, those eausa mortis and 
 those inter vivos, the essential requisites of each are the same, ex- 
 cept that gifts causa mortis are expressly made conditional upon 
 the death of the donor.' 
 
 In Dickeschied v. Bank, cited in the foot-notes, our court says 
 that "to constitute a vahd gift inter vivos, the donor must be di- 
 vested of, and the donee invested with, the right of property in 
 the subject of the gift; it must be absolute, irrevocable and 
 without reference to its taking effect at some future period. The 
 donor must deliver the property and part with all present and 
 future dominion over it. 
 
 This is a terse and complete statement of all the essential 
 factors that enter into a valid gift inter vivos, and is supported by 
 all the authorities.* 
 
 And it is declared in this same case, that "to constitute a 
 
 ' 2 Beach, Mod. Eq. Jur., ^ io6i; Dickeschied v. Bank, 28 W. Va. 340;. 
 Devol V. Dye, 123 Ind. 321, 7 1,. R. A. 439; Layson v. Davis, 17 Mont. 220. 
 
 =■ Hogue V. Bieme, 4 W. Va. 658; Martin v. Smith, 25 W. Va. 580; Yancey 
 V. Field, 85 Va. 756, 8 S. E. Rep. 721; Newman v. Bost, 122 N. C. 524, 29 S. 
 E. Rep. 848; Miller V. McMechen, 33 W. Va. 197, 6 X,. R. A. 515, and note; 
 McCartney V. Ridgway, 160 111. 129, 32 L. R. A. 555; Dorian's Appeal, 174. 
 Pa. St. 558, 32 L. R. A. 766, and note and brief of counsel. 
 
GIFrS AND ADVANCBMBNTS. 3II 
 
 valid gift causa mortis, it is essential that the donor should make 
 it in contemplation of death, either in his last illness, or while 
 he is in other peril, and that his death should result from such 
 illness or peril. The donor must part with all dominion over 
 it, so that no further act of his or of his personal representative 
 is necessary to vest the title in the donee, to belong to him 
 presently as his own property, in case the donor should die of his 
 present illness or from the impending peril, without making any 
 change in relation to the gift, leaving the donee surviving him." 
 
 § 205. The delivery of the subject-matter of the gift — 
 
 While possession of the gift is the strongest and most ma- 
 terial evidence of the fact of gift,' delivery at the time of mak- 
 ing the gift is absolutely essential to its validity.' 
 
 But the delivery must be according to the nature of the thing 
 given, and if the property is at the time of the gift in the pos- 
 session of the donee, as the agent for the donor or otherwise, it 
 is not necessary that the donee should surrender to the donor his 
 actual possession, in order that the latter may redeliver the same 
 to him in execution of the gift; so that if the donor relinquish 
 all dominion over the thing given and recognize the possession of 
 the donee as being in his own right, and the latter accepts the 
 gift, and retains his possession in virtue thereof, the gift is com- 
 plete.' 
 
 § 206. Constructive delivery pf a gift— 
 
 The delivery of a gift may be either actual or constructive. 
 When the gift is made by the manual tradition of the subject- 
 matter thereof, the delivery is actual;* but when made by the 
 means of obtaining the possession, it is only a constructive de- 
 
 ' Dickeschied v. Bank, supra; Smith v. Zumbro, 41 W. Va. 623, 24 S. E. 
 Rep. 653. 
 
 "Idem; Martin v. Smith, 25 W. Va. 579; Hogues v. Bieme, 4 W. Va. 658; 
 Yancey v. Field, 85 Va. 756; Miller v. McMechen, 33 W. Va. 197, 6 I<. R. A. 
 515, 10 S. E. Rep. 378; Dorian's Appeal, 174 Pa. St. 558, 32 L. R. A. 766; 
 McCartney V. Ridgway, 160 111. 129, 32 L. R. A. 555; Board v. Callahan, 
 33 W. Va. 209, 10 S. E. Rep. 382; Smith v. Zumbro, 41 W. Va. 623, 24 S. E. 
 Rep. 653. 
 
 3 Miller v. McMechen, supra. 
 
 « Page V. Lewis, 89 Va. i, 18 X,. R. A. 170, 179. 
 
312 EQUITY PRINCIPI<ES. 
 
 livery.* This form of delivery is always sufficient when actual 
 manual delivery is either impracticable or inconvenient.' Thus, 
 the contents of a warehouse, trunk, box or other depository may 
 be sufficiently delivered by the delivery of the key of the recep- 
 tacle.' So, it is held that the delivery of the deposit books of 
 a bank is a sufficient constructive delivery of the money on de- 
 posit with the bank;* so the delivery of a deed carries with it the 
 property embraced in the deed, where the property is capable of 
 actual delivery, for the delivery of the deed answers the place of 
 the delivery of the property;' and so, too, a mere delivery of a 
 certificate of stock carries the stock itself without any transfer 
 thereof on the books of the company.' 
 
 It is not essential that the delivery be personal to the donee 
 himself, but it may be to an agent or trustee for the use of the 
 donee.'' Or it may be delivered to one of several donees for the 
 use of all.' 
 
 § 207. Gifts of promissory notes, checks and the like — 
 
 Anything may be the subject of a gift in which the property 
 or title thereto may pass by delivery;' as, for example, money,'" 
 mortgage securities and bonds, bank notes, policies of insurance, 
 a receipt for money, a certificate of deposit, bill or notes payable 
 
 ' Page V. Lewis, supra. ' Page v. Thomas, supra. 
 
 3 Page V. Thomas, supra; Elam v. Keen, 4 Leigh, 338; Jones v. Brown, 34 
 N. H. 439; Sheegog v. Perkins, 4 Baxt. 273; Coleman v. Parker, 114 Mass. 
 30; Cooper V. Burr, 45 Barb. 9; Stephenson v. King, 81 Ky. 425, 50 Am. Rep. 
 172; Ridden v. Thrall, 125 N. Y. 572, ii L. R. A. 6S4. 
 
 * Ridden v. Thrall, supra, 2 Beach, Mod. Eq. Jur. ; \ 1067, citing numer^ 
 ous cases. See contra, Page v. Lewis, supra. See further, in support of the, 
 text, Curtis v. Portland Sav. Bank, 77 Me. 151, 52 Am. Rep. 750; Thornton, 
 Gifts, II 329-332. 
 
 s Hogues V. Bieme, supra; Wadd v. Hazleton, 21 L. R. A., notes, at pp. 
 694, 695; Seabright v. Seabright, 28 W. Va. 472. 
 
 « Leyson v. Davis, 17 Mont. 220, 31 L. R. A. 429, and the authorities re- 
 ferred to in the notes and the brief of counsel. 
 
 ' 2 Beach, Mod. Eq. Jur., ? 1065; Williams v. Guile, 117 N. Y. 343, 6 L. R. 
 A. 366; Ruggles V. Lawson, 13 Johns. 285; Michener v. Dale, 23 Pa. St. 59; 
 Clough V. Clough, 117 Mass. 83; Daniel v. Smith, 75 Cal. 548; Canner v. 
 Root, II Colo. 183. 
 
 ' Seabright v. Seabright, 28 W. Va. at page 471, citing Dresser v. Dresser, 
 46 Me. 48. 
 
 • 2 Beach, Mod, Eq, Jur., \ 1067, " Idem. 
 
GIFTS AND ADVANCEMENTS. 313 
 
 to the donor's order, although not indorsed by him;^ and that, 
 too, wllether the gift be causa mortis or inter vivos.'' But while 
 these various evidences of debt or choses in action may be the 
 subjects of valid parol gifts, it is well settled that the note of a 
 donor to a donee is not the subject of a gift.' Hence, a promis- 
 sory note transferred by the maker to the payee as a gift is 
 not enforceable by the payee against the estate of the maker 
 thereof.* 
 
 § 208. As to gifts causa mortis — 
 
 In view of the conditional character of a gift causa mortis, 
 and the circumstances or condition of the donor, which must 
 always attend it, we here give a further and distinct considera- 
 tion to this class of gifts. 
 
 The essential conditions of gifts of this character are: (i) con- 
 templation of death by the donor; (2) clearly expressed intent to 
 give in prasenti; (3) delivery of the subject-matter of the gift; 
 and (4) death of the donor without revocation of the gift.* 
 
 As to the first requisite of a gift causa mortis, it is not neces- 
 sary that the donor should be in extremis,^ or should be confined 
 to his bed or his room, or should die within a certain limited 
 time.' But it should appear that at the time of the gift that the 
 donor was in periculo mortis, or under the apprehension of death 
 as imminent.^ 
 
 » Seabright v. Seabright, 28 W. Va., at page 470; 2 Beach, Mod. Eq. Jur., 
 i 1067, citing numerous authorities. See also, in support of the text, Hopkins 
 V. Manchester, 16 R. I. 663, 7 L. R. A. 387, which was the gift of an un- 
 dorsed promissory note; Ridden v. Thrall, 11 L. R. A. 684, and notes of au- 
 thorities, pp. 685-687; Taylor's Estate, (Pa.), 18 L. R. A. 855, and note. 
 
 ' Hopkins v. Manchester, supra. 
 
 3 School Dis., Kansas City, v. Stocking, 138 Mo. 672, 37 L. R. A. 406; 
 Richardson v. Richardson, 148 HI. 563, 26 L. R. A. 305; Craig v. Craig, 3 
 Barb. Ch. 76, 5 N. Y. Ch. (L- ed.) 824, and the authorities cited in the 
 notes. 
 
 ■• Richardson v. Richardson, supra. See Thornton, Gifts and Advance- 
 ments, 267-270. 
 
 5 Champney v. Blanchard, 39 N. Y. in; Williams v. Guile, 6 L. R. A. 366; 
 2 Beach, Mod. Eq. Jur., ?? 1061-1065; Seabright v. Seabright, 28 W. Va. 412, 
 
 47°- 
 
 Ridden v. Thrall, 125 N. Y. 572, 11 L. R. A. 684. 
 
 1 2 Beach, Mod. Eq. Jur., ? 1062. 
 
 « Dickeschied v. Bank, 28 W. Va. 340, 360; Thomas v. Lewis, 89 Va. i, iS 
 
314 EQUITY PRINCIPLES. 
 
 As to the second factor of this class of gifts, we apprehend that 
 we cannot make ourselves better understood in our attempt to 
 give the true meaning of this element of gift, than by stating 
 that it is this feature of it which mainly distinguishes it from a 
 testamentary gift. In Trenholm v. Morgan," the court in its 
 opinion says: "From the nature of the donatio, it is. apparent 
 that the infallible test, which must distinguish it from a testa- 
 mentary gift, is delivery — change of dominion in prtzsenti; with- 
 out this there is really nothing to distinguish it from an ordinary 
 testamentary bequest. The intention to give must be accompa- 
 nied by delivery, and the delivery must be made with an inten- 
 A<7«togive." The conditional right of dominion to the chattel 
 must be immediate, and not future.'' 
 
 On the subject of delivery, the third element of this class of 
 gifts, nothing need be said further, as the principle governing 
 delivery is the same, both in gifts causa mortis and inter vivos. 
 
 In the case of gifts inter vivos, the moment the g^ft is consum- 
 mated by delivery, it becomes absolute and irrevocable.' But to 
 a gift causa mortis there are certain implied conditions subsequent 
 annexed, upon the happening of any one of which the donation 
 is defeated — that is to say, it is defeasible, (i) by the actual 
 revocation thereof by the donor in his lifetime; (2) by his out- 
 living the donee; (3) by the donor's survival of the apprehended 
 peril; and (4) by the occurrence of a deficiency of assets neces- 
 sary to pay the debts of the donor after his death. ^ 
 
 § 209. As to gifts between near relatives and to fidu- 
 ciaries — 
 
 ' 'A gift from a parent to his child, accompanied by delivery, is 
 as valid as a gift between strangers. Delivery of a gift from a 
 
 S. B. Rep. 389; Ijeyson v. Davis, 17 Mont. 220, 31 Iv. R. A. 429; Seabright v. 
 Seabright, 28 W. Va., at pp. 473 and 474. 
 
 ■ 28 S. C. 268, 5 S. E. Rep. 721. 
 
 ' Hall V. Howard, 33 Am. Dec. 115. In the following cases; gifts causa 
 mortis were upheld: Leyson v. Davis, supra; Williams v. Guile, 117 N. Y. 
 343. 6 !<• R- A. 366; Devol v. Dye, 123 Ind. 321, 7 L. R. A. 439, Ridden v 
 Thrall, supra. But in the following cases the gifts were not sustained: Gano 
 V. Fisk, 43 Ohio St. 462, 3 N. E. Rep. 532; Yancey v. Field, 85 Va. 756; 8 S. 
 E. Rep. 721; Trenholm v. Morgan, supra. 
 
 3 Ridden v. Thrall, supra. 
 
 < Yancey v. Field, supra; Williams v. Guile, supra; Devol v. Dye, supra; 
 Dickeschied v. Bank, supra. 
 
GIFTS AND ADVANCEMENTS. 315 
 
 father to his child, when the property remains in the family, is 
 often difficult to prove; but, when the gift is in fact shown to 
 have been fully executed by deUvery, it will be upheld." ' 
 
 So it is, likewise, as to a gift from a child to its parent, when 
 it does not appear to be tainted with undue influence in the mat- 
 ter of its procurement.' 
 
 Where a relation of confidence exists between the donor and 
 the donee, a gift from the former to the latter will only be up- 
 held upon a showing that the gift was the pure, voluntary, and 
 well-understood act of the party making the donation.' And it 
 ought to appear that the donor had independent advice on the 
 matter of making the gift.* 
 
 § 210. As to what constitutes possession by the donee — 
 
 In all gifts, possession of the subject-matter, such as the law 
 recognizes as sufficient, must come to the donee, which, as we 
 have already seen,^ may either be actual or constructive pos- 
 session. In gifts causa mortis, the donee must take and retain 
 possession until the death of the donor.* In fact our statute pro- 
 vides that "no gift of goods or chattels shall be vahd, unless by 
 deed or will, or unless actual possession shall have come to and 
 remained with the donee, or some person claiming under him.'' 
 And this same statute further provides that, "if the donor and 
 donee reside together at the time of the gift, possession at the 
 place of their residence shall not be sufficient possession within 
 the meaning of this section."* 
 
 The language of this statute would seem to preclude those 
 cases of gifts dependent upon constructive delivery; but upon 
 reason and principle it ought to be sufficient where there is such 
 potential possession as results from constructive delivery, as the com- 
 plete means of obtaining actual possession, entirely given over and 
 surrendered to the donee, ought to be treated as actual pos- 
 session. The question has never been decided in either this 
 state or Virginia, the only states in the Union having just such a 
 statute as this. 
 
 In the case of Thomas' Adm'r v. Lewis,* the court of appeals 
 
 ' Tiffany on Persons and Domestic Relations, 287. ' Idem. 
 
 3 I Beach, Mod. Eq. Jur., ? 141. * Idem. 
 
 5 Ante, i2o6. '2 Beach, Mod. Eq. Jur., ? 1064. 
 
 J Code, chap. 71, sec. i. ' Idem. ' 89 Va. i, 15 S. E. Rep. 389. 
 
31 6 EQUITY PRINCIPI.es. 
 
 of Virginia, after elaborate argument by counsel in the case and 
 a careful consideration of the question, holds that gifts causa 
 mortis are not within the purview of this statute. There the 
 gift was from father to daughter by the actual delivery to her of 
 the keys to the receptacles containing the subject-matter of the 
 gift, and the gift was sustained on common-law principles, the 
 court holding that the statute had no application, on the ground 
 that the statute only contemplates gifts inter vivos; and does not 
 refer to or include a gift causa mortis. 
 
 But where specific personal property has come to the possession 
 of the donee at the residence of the donor, where both parties are 
 residing at the time of the gift, and such specific property is sub- 
 sequently exchanged for other property to a third person, the 
 property thus obtained from such third person is the property of 
 the donee, and is not within the meaning of the statute under 
 consideration.^ 
 
 §211. The evidence required to establish a gift — 
 
 It is scarcely necessary to observe that the establishment of a 
 valid gift must always depend upon the evidence adduced in each 
 case as it arises, so that no rules for the sufl&ciency of the proof 
 of gifts in any given case can here be laid down. All that we 
 can do is to announce those general principles which have been 
 formulated by the courts in arriving at their conclusions in the 
 consideration of the cases coming before them for adjudication. 
 
 An almost self-evident rule here is, that where a party claims 
 title to personal property as a gift, either inter vivos or causa 
 mortis, the burden of proof, in whatever form the issue may be 
 presented, is upon him to establish the validity of the gift.^ The 
 evidence to sustain a parol g^ft inter vivos must be clear, un- 
 equivocal and convincing, that the donor delivered the property 
 to the donee with an intention to part absolutely with the title 
 and possession thereof.' 
 
 Declarations of the donor, made anterior to the gift, are com- 
 petent evidence on the question as to whether or not there was 
 indeed a gift made, and under some circumstances are of a very 
 
 ' Lowther v. Lowther, 30 W. Va. 103, 3 S. E. Rep. 42. 
 " Dickeschied v. Bank, 28 W. Va. 340; Seabright v. Seabright, 28 W. Va. 
 412; Board v. Callihan, 33 W. Va. 207, 10 S. B. Rep. 382. 
 3 Martin v.^Smith, 25 W. Va. 579. 
 
GIFTS AND ADVANCEMENTS. 317 
 
 convincing character, as when followed by declarations subse- 
 quent thereto.! Such subsequent declarations, however, are not 
 evidence against the donee.'* 
 
 But in the absence of evidence showing a delivery to the 
 donee, a gift will not be sustained, even though the alleged 
 donor declared that he had given the property in question to the 
 claimant, and the administrator of the estate admitted that his 
 decedent had made the gift.^ 
 
 While a gift causa mortis may be established on the evidence 
 of one competent, credible witness,* still as there is great danger 
 of fraud ia this class of gifts, the courts are very cautions in re- 
 quiring clear proof of the transaction.^ The burden of proving 
 a gift causa mortis is greater on the claimant than when the gift 
 is one inter vivos. ^ 
 
 § 212. W^hen a court of equity will aid in rendering gifts 
 effective — 
 A court of equity will not aid a mere volunteer to carry into 
 effect an imperfect gift or an executory trust; '' but where a 
 voluntary trust, upon a meritorious consideration, has been per- 
 fectly created, it is irrevocable, and may be enforced in equity.' 
 Thus a court of equity will lend its aid to support a gift of choses 
 in action from a husband to a wife, when not unreasonable in its 
 provisions nor in fraud of creditors.' So, too, a court of equity 
 should furnish its aid, in making effective a gift by a father to a 
 child, of land, where the gift is evidenced by an unsealed instru- 
 ment, executed by the father and formally delivered to the child.*" 
 
 ' Larimore v. Wells, 29 Ohio St. 13; Thornton, Gifts, ? 222; 2 Schouler, 
 Pers. Prop., § 94; Leyson v. Davis, 17 Mont. 220, 31 L. R. A. 429; Smith 
 V. Maine, 25 Barb. 33; Hunter v. Hunter, 19 Barb. 631. 
 
 ' Brock V. Brock, 92 Va. 173, 23 S. E. Rep. 224. 
 
 3 Yancy v. Field, 85 Va. 756, 8 S. E. Rep. 721. 
 
 * Page, Adm'r of Thomas v. Lewis, supra. 
 
 s 2 Beach, Mod. Eq. Jur., ? 1066. 
 
 ' Idem; Seabright v. Seabright, supra. 
 
 1 McCartney v. Ridgway, 160 111. 129, 32 L. R. A. 555, 563. » Idem. 
 
 9 Fox V. Jones, i W. Va. 205. 
 
 «> Marling v. Marling, 9 W. Va. 79. There is a carefully prepared and 
 able article by Prof. Charles A. Graves of the Washington and Lee Univer- 
 sity, published in the Virginia Law Register, VoL I, No. 12, pp. 871-894, to 
 which the author refers as a clear presentation of the subject here con- 
 sidered. 
 
3l8 BQUITY PRINCIPLES. 
 
 § 213. ^Vhat constitutes an advancement — 
 
 An advancement is a gift made during his lifetime, by a per- 
 son who afterwards dies intestate, to his heir or distributee, of 
 something by anticipation of what the donee would by law re- 
 ceive upon the death of the donor." 
 
 There is embraced in every definition of an advancement, the 
 idea that the parent has irrevocably parted from his title in the 
 subject advanced.' But whether a conveyance or transfer of 
 property from a parent to a child is an advancement depends on 
 the intention of the parent in making it.' If the conveyance is 
 upon the consideration of love and affection, or if the considera- 
 tion be merely nominal, the presumption is that the parent in- 
 tended that the property should go as an advancement, until it 
 is made to appear otherwise, either from the deed itself, or evi- 
 dence aliunde.* Parol evidence may be used to show the real 
 and true consideration of a deed, though its recital is of a con- 
 sideration deemed valuable in law, in order to determine whether 
 or not the subject-matter of the conveyance was in fact an ad- 
 vancement.* 
 
 § 214. HoAv and to whom advancements are chargeable — 
 Parties receiving advancements are required to bring them 
 into hotchpot with the whole estate, real and personal, in order 
 to share in the distribution of the estate of the party making 
 such advancements.' But this is not done for the benefit of the 
 widow of the decedent, as she is only entitled to share in the 
 estate of which he died seized.' 
 
 If, in the division of the decedent's estate, advancements are 
 brought into hotchpot, those receiving the advancements should 
 be charged with their value as of the time they were received, 
 but not with the rents and profits thereof, when the subject of 
 
 ' Dame v. Lloyd, 82 Va. 859; Grattan v. Grattan, 18 HI. 167; Osgood v. 
 Breed, 17 Mass. 356; Miller's Appeal, 31 Pa. St. 337. 
 
 » Dame v. Lloyd, supra. 
 
 3 Roberts v. Coleman, 37 W. Va. 143, 16 S. E. Rep. 482; Watkins v. 
 Young, 31 Gratt. 84; Bruce v. Slemp, 82 Va. 352. 
 
 « Roberts v. Coleman, supra; McClanahan v. McClanahan. 36 W. Va. 34, 
 14 S. E. Rep. 419. 
 
 5 Bruce v. Slemp, 82 Va. 352. 
 
 ' Code, chap. 78, sec. 13; 2 Bart. Ch. Prac. 728. 
 
 ' Knight V. Oliver, 12 Gratt. 33. 
 
GIFTS AND ADVANCEMENTS. 319 
 
 the advancements is land, nor with the increase of personal prop- 
 erty, nor with the interest on the value received of either real or 
 personal property during the Hfetime of the decedent; but they 
 must be charged with interest from the death of the decedent on 
 the value when received of all property both real and personal so 
 advanced.' 
 
 Statutes requiring advancements to be brought into hotchpot 
 are construed liberally so as to carry out the purpose of such 
 acts, and bring about equality in the distribution of the estate of 
 the intestate among those who, in the absence of a will, are the 
 rightful claimants of his estate.' Every thing must, therefore, 
 be brought into hotchpot which is required either by the letter or 
 spirit of the law.^ Thus, under this principle, a gift by a father 
 to his son-in-law will be treated as an advancement to his 
 daughter;* so, too, a conveyance of land to a daughter and her 
 children, whether bom or to be bom, for the consideration of 
 love and afEection, whether for the daughter or the children or 
 both, the entire land thus conveyed will be taken as an advance- 
 ment to the daughter.® 
 
 But while a party receiving advancements may bring them into 
 hotchpot with the whole estate, and then share in its distribu- 
 tion, still if such party has accepted an advancement which he 
 acknowledges to be in full of his prospective share in the estate, 
 both real and personal, it will bar any further claim for participa- 
 tion therein.* 
 
 § 215. The evidence to sho\vthe existence of an advance- 
 ment — 
 As we have already seen,' the question whether or not a gift 
 will be treated as an advancement depends upon the intention of 
 the donor; and this may be arrived at from the face of the in- 
 strument itself or by evidence aliunde} This need not be shown 
 by written evidence, but the statements of the intestate at the 
 time of the advancement or made subsequently thereto, are com- 
 
 > Kyle V. Conrad, 25 W. Va. 760; Beckwith v. Butler, i Wash. 224; Hud- 
 son V. Hudson, 3 Rand. 117, 120; Chinn v. Murry, 4 Gratt. .348. 
 
 ' Kyle V. Conrad, supra, at page 774. ^ Idem. 
 
 < Bruce v. Slemp, supra. s Kyle v. Conrad, supra. 
 
 « Roberts v. Coleman, supra; Barham v. McKneely, 89 Ga. 812, 15 S. E. 
 Rep. 761. 
 
 ^ Ante, ? 213. " Idem. 
 
320 SQUITY PRINCIPI^BS. , 
 
 petent evidence to show what his intentions were.^ Hence, 
 where a father, by deed, conveyed real estate to two of his minor 
 sons, declaring at the time that he was making the conveyance, 
 not as an advancement but as an addition to their equal share of 
 the residue of his estate, it was held that this was competent 
 evidence to negative the presumption that the conveyance was 
 an advancement.^ So, entries made by a deceased parent in his 
 books of account or in a memorandum book kept by him, are 
 competent evidence on the question of advancements and their 
 amounts.' 
 
 ' McDearman v. Hodnett, 83 Va. 281, 2 S. E. Rep. 643. 
 
 » Mitchell V. Mitchell, 8 Ala. 414. 
 
 3 Hartwell v. Rice, i Gray (Mass.), 587; Fellows v. Little, 46 N. H. 27. 
 
GUARDIAN AND WARD. 32 1 
 
 CHAPTER XX. 
 
 GUARDIAN AND WARD. 
 
 I 216. The appointment and qualification of guardians. 
 
 217. Investments by the guardian of the ward's estate. 
 
 218. Guardian is entitled to the custody of his ward, and the possession, 
 
 care and management of his estate. 
 
 219. Disbursement, allowed the guardian in his dealings and transactions 
 
 with the ward. 
 
 220. The keeping and stating of the guardian's accounts. 
 
 221. The guardian's compensation. 
 
 222. The personal liability of guardians. 
 
 223. Jurisdiction in equity over the accounts and dealings of guardians. 
 
 224. Surcharging and falsifying the accounts and settlements of guard- 
 
 ians. 
 
 225. The termination of the guardianship. 
 
 § 216. The appointment and qualification of guardians — 
 The code provides that every father, or mother, if she be a 
 widow or unmarried woman, may, by will, appoint a guardian 
 for his or her child, bom or to be bom, and for such time during 
 its infancy as he or she shall direct.^ The office of a testamentary 
 guardian is joint and several, so that if two persons are ap- 
 pointed to such trust, either may quaUfy without the other, and 
 without summoning the other to accept or renounce the guardian- 
 ship.'' 
 
 In the appointment of a testamentary guardian, the use of the 
 term guardian,' or other express words, is not necessary, nor is 
 it material by what words the guardian is appointed, provided 
 the father's intent be sufficiently apparent, and that the language 
 used be such as to imply a right to the custody, control and pro- 
 tection of the ward.' 
 
 ' Code, chap. 82, sec. i. ' Kevan v. Waller, 15 Gratt. 414. 
 
 ' The word guardian is used in the broad sense of protection, superintend- 
 ence, guardianship; it comes from the Latin tuer, to defend; and hence its 
 radical signification is defense. This is also implied by the word guardian- 
 ship, which, however, is yet broader, for it implies custody; its root is the 
 Anglo-Saxon wardian, which sigfnifies to look, to look after, and thence, by 
 21 
 
322 EQUITY PRINCIPI<ES. 
 
 If the person appointed a testamentary guardian shall renounce- 
 the trust, or fail to give bond and qualify within six months 
 after the probate of the will, his appointment shall be void.* 
 
 The county court of any county in which any minor resides, 
 or, if he be a resident out of the state, in which he has any 
 estate, may appoint a guardian for him, unless he have a guard- 
 ian appointed as aforesaid by his father or mother.' The clerk 
 of the county court, during the recess of the regular sessions of 
 such court, may appoint and qualify guardians, in the same man- 
 ner and with like effect for the time being, as the said county 
 court could do if in session; but no contest shall be heard in 
 reference thereto.' The clerk afterwards reports this appoint- 
 ment made by him to the county court, which, when confirmed 
 by such court, is held and treated in all respects as if the ap- 
 pointment had been made by the county court in the first in- 
 stance.* 
 
 If the minor be under the age of fourteen years, the court may 
 appoint his guardian, and if he be above that age, he may, in the 
 presence of the court, or in writing duly acknowledged, nomi- 
 nate his own guardian, who, if approved by the court, shall be 
 appointed accordingly; but if the guardian nominated by such 
 minor shall not be appointed by the court, or if the minor shall 
 reside without th6 state, or if, after being summoned, he shall 
 neglect to nominate a suitable person, the court may appoint the 
 guardian in the same manner as if the minor was under the age 
 of fourteen years.* 
 
 Every guardian, unless in the case of a testamentary guardian, 
 the will otherwise directs, and the court in which the will is re- 
 corded deems it unnecessary for the safety of the ward, shall 
 give bond, to be approved by the court by whom he is appointed, 
 or before whom he accepts the trust, in such penalty as shall be 
 prescribed by the court.' 
 
 transition, to guard, to keep; and so implies custody. The word guardian is 
 derived immediately from the French gardien, which itself comes from 
 wardien, the w being converted, as is usual, into^. Richardson's Diet.; i 
 Took's Diversions of Purley, 332-4; 2 Inst. 305. See opinion of Tucker, P., 
 in the case of Kevan v. Waller, 2 Leigh, at page 431; Southern Marble Co. 
 v. Stegall, 90 Ga. 236; s. c. 15 S. E. Rep. 806. 
 
 ' Code, chap. 82, sec. 2. » Idem, sec. 3. 
 
 3 Code, chap. 118, sec. 1. ♦ Idem, sec. 3. s Code, chap. 82, sec. 4.. 
 
 * Idem, sec. 5. 
 
GUARDIAN AND WARD. 323 
 
 The taking and approving a guardian's bond by the county- 
 court is not a ministerial, but a judicial act.^ The bond of a 
 guardian is not invalid because it does not contain all the require- 
 ments of the statute;^ nor because the condition does not state 
 the appointment of the guardian;' nor because it contains mat- 
 ters not demanded by the statute.* 
 
 After a guardian has been duly appointed and qualified, unless 
 he shall die, be removed, or resign his trust, he shall continue in 
 office until the minor shall attain the age of twenty-one years, 
 notwithstanding the minor may marry before that time, or, in 
 case of a testamentary guardianship, until the termination of the 
 period limited therefor.* Hence, when the county court has 
 regularly appointed a guardian for an infant under fourteen 
 years of age, the infant, after he attains that age, has not the 
 right, at his mere election, to have his guardian thus appointed 
 displaced, and a new one of his own nomination substituted." 
 But aside from the regular appointment of a guardian, there may 
 be such an intermeddling with the estate of an infant by attother, 
 as where one takes charge of the estate of an infant and holds 
 and uses the same for any length of time, that the court will 
 treat such person as a de facto gfuardian, and make him account 
 for the estate of such minor as if he had been duly appointed a 
 guardian.' 
 
 § 217. Investments by the guardian of his ward's estate — 
 Our code provides that, "whenever a guardian shall collect 
 any principal or interest belonging to his ward, he shall have 
 thirty days to invest or loan the same, and shall not be charged 
 with interest thereon untU the expiration of said time, unless he 
 shall have made the investment previous thereto, in which case 
 he shall be charged with interest from the time the investment or 
 loan was made. ' ' * 
 
 "A guardian may lend out his ward's funds on good personal 
 
 ' Page V. Taylor, 2 Munf. 492. 
 
 = Reed and Roper v. Hedges, 16 W. Va. 167. 3 Idem. « Idem. 
 
 5 Code, chap. 82, sec. 7; Ham v. Ham, 15 Gratt. 74. 
 
 ' Ham V. Ham, supra. 
 
 7 Martin's Adm'r v. Fielder, 82 Va. 455; s. c. 4 S. E. Rep. 602; Latham v. 
 Wilcox, 99 N. C. 367; s. c. 6 S. E. Rep. 7"- 
 
 « Code, chap. 82, sec. 12; Hescht v. Calvert, 32 W. Va. 216; s. c. 9 S. E. 
 Rep. 87. 
 
324 BQUITY PRINCIPLES. 
 
 or real security, and if he takes such as is generally regarded as 
 good, provided he exercises a sound and reasonable discretion in 
 its selection, and acts in good faith, and if, under such circum- 
 stances, a loss occurs, he is not responsible for the funds. The 
 same rules in these matters apply to guardians as to other fidu- 
 ciaries, that in whatever they do they shall act in good faith and 
 with the same wisdom and discretion that a prudent man is ac- 
 customed to exercise in the management of his own affairs. ' ' ' 
 
 Like all other trustees, the guardian is bound to make his ward's 
 funds productive.* He should see that the capital that comes to 
 his hands is well secured; procure a change of securities when- 
 ever necessary; and invest surplus moneys where they may draw 
 interest.' But he may keep a suitable surplus on hand for cur- 
 rent and contingent expenses; also sums too small to be wisely 
 invested.* And family relics and ornaments, household furni- 
 ture and farm stock, are generally exempted from the rule of 
 investment.* 
 
 § 218. The guardian is entitled to the custody of his 
 vrard, and the possession, care and management 
 of his estate — 
 
 Our statute provides that every guardian shall have the custody 
 of his ward, and the possession, care and management of his 
 estate, real and personal, and out of the proceeds of such estate 
 shall provide for his maintenance and education, but the father 
 of the minor, if living, and in case of his death, the mother, if 
 fit for the trust, shall be entitled to the custody of the person of 
 the minor, and to the care of his education.* It is not the guard- 
 ian by nature who is entitled to the possession, care and manage- 
 mnet of his ward's estate, but the guardian who has been duly 
 appointed and qualified as such that is clothed with this right.'' 
 
 ' 'So far as the guardian's power and control over the person of 
 the ward is concerned, it is similar to, although not exactly, the 
 same as that of a parent, since he has no private interest in his 
 ward's earnings, nor can he in his own name maintain an action 
 for seduction of a female ward, nor for any injury to the ward's 
 
 ■ 2 Bart., Ch. Prac. 701, 702. 
 
 » Schouler's Dom. Rel. (2d ed.), 474, 475. 3 Idem. * Idem, s Idem. 
 * Code, chap. 82, sec. 7; Mathews v. Wade, 2 W. Va. 464. 
 ' McDodrill V. Pardee & Curtain Lumber Co., 40 W. Va. 564; 21 S. B. 
 Rep. 878. 
 
GUARDIAN AND WARD. 325 
 
 person; but lie may protect and defend his ward, may with the 
 c»nsent of the court bind him out as an apprentice, . . . 
 prevent an elopement, and maintain an action, writ of habeas cor- 
 pus, or bill in chancery for the possession and right to the custody 
 of his ward."i But it will not be overlooked that, as a general 
 rule, the father, during his lifetime, and, after his death, the 
 mother, is entitled to the custody of the person of their minor 
 child, and that in subordination to this law the power of the 
 guardian as to the care of the child must be exercised.' And a 
 father cannot, by any instrument in writing or otherwise, relin- 
 quish or surrender to another the custody of the person of his 
 minor child so as to deprive the mother of such child, after the 
 father's death, of her right to the custody thereof, and to the 
 care of its education.* This right of the father or mother, how- 
 ever, to the custody of their minor child is not an absolute right to 
 be accorded to them under all circumstances; for it may be denied 
 to either of them if it appears to the court that the parent other- 
 wise entitled to this right is unfit for the trust.' 
 
 When the care of the person of a minor has been committed to 
 his guardian, the guardian is bound to promote the moral wel- 
 fare of the person thus placed in his charge, and in the dis- 
 charge of this duty, he may warn off from the ward's premises 
 any person improper for him to associate with, and if necessary 
 expel him forcibly.' But while the guardian does have the cus- 
 tody of his ward's person, he cannot change his domicil so as to 
 affect the descent and distribution of his estate.* 
 
 The guardian has control over the ward's property, and may 
 maintain a suit in chancery for the sale of the real estate of his 
 ward;^ may petition the circuit court for permission to submit to 
 arbitration any suit or matter of controversy touching the estate 
 
 ' 2 Bart. Ch. Prac. 703, 704. See also Mathews v. Wade, 2 W. Va. 464; 
 State V. Reuff, 29 W. Va. 751; s. c. 2 S. E. Rep. 801. 
 
 " State V. Reuff, 29 W. Va. 751, s. c. 2 S. E. Rep. 801. 
 
 3 Idem. * Idem. 
 
 5 Schouler's Domestic Relations (2d ed.), 453. 
 
 ' Mears v. Sinclair, i W. Va. 185. 
 
 ' Code, chap. 83, sec. 2; Cooper v. Hepburn, 15 Gratt. 551. Inasmuch as 
 ■we have already treated of the subject of the sale of the property of infants 
 and insane persons under the chapter devoted to fiduciaries, we here refer to 
 the subject as there presented as being all that ought to be said as to that 
 matter in a work of this character. Ante, ?§ 124-127. 
 
326 EQUITY PRINCIPI<ES. 
 
 of his ward;^ may lease the lands of his ward for a period not ex- 
 ceeding the minority of his ward.* 
 
 "Among the most obvious powers and duties of the guardian 
 in the management of his ward's property are these: To collect 
 all dues and give receipts for the same. To procure such legacies 
 and distributive shares from testators or others as may have ac- 
 crued. To take and hold all property settled upon the ward by 
 way of gift or purchase, unless some trustee is interposed. To 
 collect dividends and interest, and the income of personal prop- 
 erty in general. To receive and receipt for the rents and profits 
 of real estate. To receive moneys due the ward on bond and 
 mortgage. To pay the necessary expenses of the ward's per- 
 sonal protection, education and support. To invest and reinvest 
 all balances in his hands. To sell the capital of the ward's prop- 
 erty, change the character of the investments when needful, con- 
 vert real into personal and personal into real estate in a suitable 
 exigency, but not without judicial direction. To account to the 
 ward or his legal representatives at the expiration of his trust. 
 And, in general, to exercise the same prudence and foresight 
 which a good business man would use in the management of 
 his own fortunes, though under more guarded restraints.'" 
 
 Though, while the guardian has the right to collect the debts 
 of the minor and to bring suit therefor, as a general rule, the 
 action cannot be brought in the name of the guardian. The 
 suit to recover the possession of the ward's property should be 
 in the name of the ward by his next friend.* 
 
 Where, however, the guardian is already in the possession of 
 the ward's property and damage is done thereto, it seems that 
 the action for damages should be brought in the name of the 
 guardian.® "Where, too, the contract or debt is the result of the 
 guardian's own management of the ward's estate, the.suit thereon 
 should be in the guardian's own name.* 
 
 "The guardian may sell the whole or any part of the ward's 
 personal property, whether it is perishable or not, and may pass 
 a good title to it unless the sale be fraudulent, and the purchaser 
 
 ' Code, chap. 109, sec. 5. = Ross v. Gill, 4 Call, 250. 
 
 3 Schouler's Domestic Relations (2d ed.), 461, 462. 
 
 ■• Burdett v. Cain, 8 W. Va. 282; Sillings v. Bumgardner, 9 Gratt. 273; 
 I/cmon V. Hansbarger, 6 Gratt. 301; Schouler's Domestic Relations (2d ed.), 
 462, 9 Enc. PI. & Pr. 929, 930. 
 
 s Truss V. Old, 6 Rand. 556' ' 9 Am. & Eng. Enc. Law, in. 
 
GUARDIAN AND WARD. 327 
 
 ■collude with the guardian by co-operating in the fraud. His 
 rights in this respect are similar to those of an executor or ad- 
 ministrator."^ 
 
 He is liable, like any other fiduciary, for debts lost by his neg- 
 ligence, or for the payment of debts which he might have success- 
 fully resisted, for improperly compromising or releasing a debt, 
 ior delaying the payment of just debts, for goods which are stolen 
 or destroyed by his fault, for losses for depreciated currency, for 
 the default of his agents, and for sales imprudently made at an 
 undervalue.* 
 
 So far as the guardian acts within the scope of his powers, he 
 is bound only to the observance of fidelity, and such diUgence 
 and prudence as men display in the ordinary affairs of life. And 
 in the absence of misconduct his acts are liberally regarded.' He 
 is not liable for investments prudently made, which afterwards 
 prove worthless. Nor is he responsible for funds of which he 
 was robbed without his fault.* Where a guardian cultivates his 
 ward's lands instead of letting them out, he is bound to cultivate 
 them as a prudent farmer would his own premises; otherwise, 
 the loss by depreciation of the property in value must be made 
 good by him.^ 
 
 § 219. Disbursements allowed the guardian in his deal- 
 ings and transactions with his ward. 
 
 Our statute provides that "no disbursements shall be allowed 
 to any guardian where the deed or will under which the estate is 
 derived does not authorize it, beyond the annual income of the 
 ward's estate, except in the following cases: 
 
 "First. When the ward is of such tender years or infirm health 
 that he cannot be bound out as an apprentice, or no suitable per- 
 son will take him as such; or, 
 
 "Secondly. When (although old enough to be bound out as an 
 apprentice) it shall be deemed best for the ward that the princi- 
 pal of his personal estate, or a portion thereof, should be applied 
 towards his education or maintenance. But the guardian shall, 
 before thus applying any part of such principal, file his petition 
 
 ' 2 Bart. Ch. Prac. 704. 
 
 " Idem, 705; Hescht v. Calvert, 32 W. Va. 216; s. c. 9 S. E. Rep. 87. 
 3 Schouler's Dom. Rel. (2d ed.) 469- * Idem. 
 
 5 Idem, 471. As to the guardian's power and authority to sell his ward's 
 real estate, see ante, H 124-127. 
 
328 KQUITY PRINCIPI,ES. 
 
 before tlie circuit court of the county in which he was appointed, 
 for permission thus to apply the whole or a portion of said prin- 
 cipal, in which petition he shall state the facts relied on by him 
 to induce the court to grant the prayer of the petition. The 
 court shall appoint a guardian ad litem for the ward, who shall 
 answer the said petition. Upon the hearing of the case, the court 
 may grant or refuse the petition as to it may seem judicious and 
 proper. No credit shall be allowed the guardian in the settle- 
 ment of his accounts for expenditures for his ward under this 
 section, except for disbursements of the annual income of his 
 ward's estate, and for such amounts as the said court shall have 
 first authorized to be expended of the principal of his personal 
 estate, as hereinbefore provided. ' ' ' 
 
 An examination of this statute shows that the guardian will 
 not be allowed credit for any disbursements beyond the annual 
 income of the ward's estate, except under certain circumstances 
 the guardian may dispose of the personal estate, or a portion 
 thereof, after having been duly authorized by the circuit court so 
 to do. And this is the construction placed upon this statute by 
 our court.' This rule permits the entire income to be expended, 
 though it should exceed that of the property in the hands of the 
 guardian, provided it does not exceed the income of the entire 
 estate, including what may be in the possession of others also be- 
 longing to the ward.' 
 
 Thus, the annual income or profits of the estate which is ap- 
 plicable to a ward's maintenance and education embraces that 
 derived from property in the hands of the administrator of the 
 ward's father, that in the hands or under the immediate control 
 of the guardian, and, indeed, all that belongs to the ward, but 
 the surplus of one year, not required for disbursement, becomes 
 a part of the principal, and cannot be employed by the guardian 
 
 » Code, chap. 82, sec. 8. 
 
 ' Brown v. Grant, 29 W. Va. 117; s. c. 11 S. E. Rep. 900. See, also, Myers 
 V. Wade, 6 Rand. 444; Rinker v. Streit, 33 Gratt. 663. It is said in the case 
 of Myers v. Wade, that the parent who is guardian of his children is held 
 to a stricter observance of this rule as to the education and maintenance of 
 his children than a stranger who may happen to be the guardian, as it is the 
 duty of a parent to educate and maintain his children without reference to 
 their ability to do so. 
 
 3 Foreman v. Murray, 7 Leigh,- 412. 
 
GUARDIAN AND WARD. 329 
 
 to meet disbursements of subsequent years, except Cvhere it is 
 allowable for that purpose to encroach on the principal.' 
 
 The real estate of a ward can only be sold by the guardian in 
 the manner prescribed in chapter eighty-three of the Code. It . 
 can not be sold for the mere purpose of the maintenance and sup- 
 port of the ward.'' And where a guardian uses the proceeds de- 
 rived from the sale of real estate made under the statute for a 
 change of investment, for the payment of the annual expenses of 
 his ward, the amount will not be allowed him as a credit upon his 
 disbursements on account of his ward.' 
 
 ' 'The guardian will be credited with any debt that he may have 
 properly paid for his ward, whether contracted by himself or ob- 
 ligatory upon him as descending from his father; such debts for 
 instance as those incurred for the cost of clothes, education, rea- 
 sonable counsel fees, taxes, hires, repairs, rents, postage, etc.; 
 and where the guardian is not the parent, he may charge the 
 ward with his support, notwithstanding at a previous time (with- 
 out valuable consideration) he may have declared that he did not 
 intend to ch&rge him, and although he may have kept his wards 
 in his family and required them to work as children might be re- 
 quired."* * 
 
 Inasmuch as the father is bound to support his own children, 
 he cannot, as a rule, when guardian, claim the right to use the 
 income of their property for that purpose; unless, indeed, his 
 means are small, when he may be allowed to claim assistance 
 from their fortunes, to bring them up in a proper and suitable 
 manner.^ But where the mother furnishes the means for the sup- 
 port and education of her children, she stands upon a different 
 footing from the father, and may receive pay from the guardian 
 or funds in his hands for money expended by her upon her minor 
 children in their maintenance and education, just as a stranger 
 could do.' 
 
 The following are some of the cases in which it is both reason- 
 able and necessary to exceed the ward's income: Where the prop- 
 erty is small and the income inadequate for support; where the 
 
 ' 2 Bart., Ch. Prac. 706, 707. ' See ante, i 124. 
 
 3 2 Bart., Ch. Prac. 707. 
 
 * 2 Bart., Ch. Prac. 708. 
 
 5 Schouler's Domestic Relations (2d ed.), 458. 
 
 « Hescht V. Calvert, 32 W. Va. 216; s. c. 9 S. E. Rep. 87. 
 
330 BQtriTY PRINCIPLBS. 
 
 ward's education is nearly completed, and its completion will fit 
 him for a profession; in case of extreme sickness, or other emer- 
 gency, where an unusual outlay becomes necessary.^ 
 
 § 220. The keeping and stating the guardian's accounts — 
 Our statute provides, as we have shown," that ' 'a statement of 
 all money which any . . . guardian shall have received or 
 become chargeable with or disbursed within one year from the 
 date of the order conferring his authority, . . . together 
 with the vouchers for such disbursements, shall within six months 
 after the end of every such year, be exhibited by him before a 
 commissioner of accounts in the county wherein the order was 
 made conferring his authority; . . . and the said commis- 
 sioner shall state, settle and report to the court or clerk ap- 
 pointing him, an account of the transaction of any such fiduciary 
 as provided bylaw."^ If a guardian shall fail to lay his ac- 
 counts before a commissioner as required by this statute during 
 any year or years he may have had his ward's money in his' pos- 
 session, he should have no compensation during the year or 
 years he has so failed to make such settlement of his accounts.* 
 
 It is his duty to make out and return an inventory to the 
 clerk of the court that appointed him, of all the personal and 
 real estate that has come to his hands as such guardian, within 
 four months after the date of the order conferring his au- 
 thority.^ The filing of this inventory is one of the guardian's 
 first duties. It is a schedule, wherein the amount of, the ward's 
 estate, both real and personal, together with the separate items 
 thereof, are duly entered at a just valuation, and this inventory 
 serves as a basis of the guardian's accounts and primarily fixes 
 his liability. '^ But one inventory is required, and if subsequent 
 effects come to his hands, he will place them in his accounts to 
 his ward's credit.' The valuation of the property as contained 
 in the inventory is prima fade its true valuation, but not con- 
 clusive; and the guardian, too, may show that it contains er- 
 rors both as to the property itself and as to its valuation; and 
 it is also open to correction by the ward.' 
 
 » Schouler on Domestic Relations, 458. 
 
 ' See ante, I 153. 3 Code, chap. 87, sec. 6. 
 
 •• Hescht V. Calvert, 32 W. Va. 216; s. c. 9 S. E. Rep. 87. 
 
 s Code, chap. 87, sec. 2; ante, ? 150. 
 
 "Schouler, Dom. Rel. {2d ed.), 493. ildem, 494. ^Idem. 
 
GUARDIAN AND WARD. 33 1 
 
 The same law as to inventories and accounts of sales applies 
 to guardians that is applicable to other fiduciaries.' 
 
 The guardian in keeping and settling the accounts of his 
 wards (where there is more than one ward) should take care to 
 have their accounts separate, and settle them separately, showing 
 his receipts and disbursements, and the balance in favor of or 
 against each ward.' The account should show the receipts and 
 disbursements during the course of each year, crediting the 
 guardian with his commissions at the time of the receipt of the 
 money, striking a balance at the end of each year, and keeping 
 the principal separate from the interest.^i 
 
 "If any balance, whether of profits received or estimated, or 
 of interest or principal, be due by any guardian, or other person 
 acting as guardian, at the end of any year, which ought to be 
 invested or loaned out within a reasonable time for the benefit of 
 the ward, and the same remain in the hands of such guardian or 
 other person, he shall be charged with interest thereon from the 
 end of the year in which such balance arose, and so on toties 
 quoties during the continuance of the trust." * 
 
 The account of disbursements, in order to fix the balance in 
 the hands of the guardian, is usually sustained by vouchers pro- 
 duced by the guardian, and it is proper to require such vouchers; 
 but it is only necessary that they be produced, as the guardian 
 may retain them, while the report of the settlement and the ac- 
 count itself are returned to the clerk of the court and filed and 
 recorded by him.' 
 
 In the construction of the statute of Virginia, from which our 
 statute is taken,* the court of appeals of that state, in the case 
 of Garrett v. Carr,' says: "If, upon the first settlement by the 
 guardian of his accounts, a balance remains in his hands on 
 which he is to account for interest, such interest must, in his 
 second annual account, be credited to the ward, like other profits 
 of the estate; and if the interest and other profits of the estate 
 credited in this second account exceed the disbursements, the 
 
 ' Code, chap. 87. See ante, i 150. 
 
 = Hescht V. Calvert, 32 W. Va. 216; s. c. 9 S. E. Rep. 87; Annstrong v 
 Walknp, 9 Gratt. 372. 
 
 3 2 Bart. Ch. Prac. 698, 699. * Code, chap. 82, sec. 10. 
 
 5 Schoul., Dom. Rel. (2d ed.) 496; Code, chap. 87, sec. 8; anle, ? 153, as 
 to disbursements by fiduciaries. 
 
 ' Code, chap. 82, sec. 10. ' i Rob. Rep. 196. 
 
332 EQUITY PRINCIPLBS. 
 
 surplus, whether it arise from the interest aforesaid or from 
 other profits, will constitute a balance against the guardian, on 
 which, if it remain in his hands, he must account for interest, 
 which interest must, in his third annual account, be credited to 
 the ward; and so on, toties quoties." 
 
 And in this same case, the further principle is announced, that 
 where a guardian has returned no account to the court which ap- 
 pointed him, and a bill in equity is filed against him, the court of 
 equity will charge him with interest from the time and in the 
 manner that he would have been charged if his account had been 
 annually exhibited to the court which appointed him; and will 
 settle the accounts, in other respects, upon the principles that 
 would have governed the settlements if regular returns had been 
 made to that court.' 
 
 Inasmuch as a guardian may collect interest on interest, when 
 the interest on the principal sum is not punctually paid at the 
 end of each year,^ his failure to collect the interest so as to invest 
 the same as profits of his ward's estate, and his failure to invest 
 any other moneys under his control that should be invested, will 
 render him liable to the payment of interest thereon.' 
 
 Where a debt is lost by the default or negligence of the guard- 
 ian, his liability for interest is the same as that of any other 
 fiduciary;* and if he receives his ward's money and does not in- 
 vest it, but retains it in his own hands, he is to be charged with 
 interest thereon from the date of its receipt, and not from the end 
 of the thirty days allowed by the statute for making the invest- 
 ment.* 
 
 From the time that the guardianship terminates, the account 
 between the guardian and ward will be stated upon the ordinary 
 principle that prevails between debtor and creditor. Sums paid 
 after that time by the guardian to the ward will be credited at 
 the respective dates of such payments, so as to stop interest pro 
 tanto from those dates.* 
 
 So, when the guardianship terminates by the death of the 
 guadian, simple interest only, and not compound, should be 
 
 ■ See also the case of McKay v. McKay, 33 W. Va. 724; s. c. 11 S. E. Rep. 
 
 213- 
 
 ' Code, chap. 82, sec. 11. 3 Schoul., Dom. Rel. (2d ed.) 477. 
 
 * Ante, ii no, 115, 128. ' s 2 Bart. Ch. Prac. 711. 
 
 ' Garrett v. Carr, i Rob. Rep. 196. 
 
GUARDIAN AND WARD. 333 
 
 charged from the death of the guardian on the balance found 
 due from him at his death. ^ 
 
 § 221. The guardian's compensation — 
 
 Our law provides that the commissioner, in stating and settling 
 the accounts of a fiduciary, shall allow him any reasonable ex- 
 penses incurred by him as such; and also, except in cases in 
 which it is otherwise provided, a reasonable compensation in the 
 form of a commission on receipts or otherwise.^ It will be seen 
 that from this statute the rule as to expenses and compensation 
 is the same with reference to guardians that is applicable to all 
 other fiduciaries. As this subject has already been considered in 
 a former part of this work, we here refer the reader to those 
 sections, where the matter is fully discussed.' 
 
 § 222. The personal liability of guardians — 
 
 "Generally, unauthorized acts, even if done in good faith, are 
 undertaken at the risk of the guardian; if they prove beneficial 
 to the ward, the court wiU adopt them; if detrimental, he is 
 personally Hable for the loss."* If the guardian contract a debt 
 on account of and for the benefit of the ward, he becomes per- 
 sonally Uable to the party therefor, even though the debt be for 
 necessaries, and though he may be afterwards permitted to re- 
 imburse himself out of the ward's estate.* 
 
 If one acting in a trust capacity could claim exemption from all 
 personal hability on the ground that there was none of the ward's 
 property left in his hands for payment, he might abuse his privi- 
 leges. ° His knowledge of the exact state of the trust fund and 
 his power of management would give him an immense advantage 
 over the other contracting party.' Hence, the propriety of the 
 rule that guardians are personally bound on their contracts, in 
 dealing with others on the ward's behalf, while in tun; they bind 
 the estate by charging their expense to be passed upon by the 
 court.* Proper words may be inserted in the note or other con- 
 
 ' McKay v. McKay's Adm'rs, 33 W. Va. 724; s. c. ii S. E. Rep. 213. 
 
 " Code, chap. 87, sec. 17. 
 
 3 Ante, Chapter XV, Executors and Administrators, ? ii8; and Fiduciaries, 
 
 II 136, 146. 
 * 9 Am. & Eng. Enc. Law, 107. = Schouler, Dom. Rel. (2d ed.), 464. 
 
 ' Idem. ' Idem. ° Idem. 
 
334 EQUITY PRINCIPI,ES. 
 
 tract showing an intention to bind himself as guardian, and not 
 personally.' But where the guardian makes an unauthorized or 
 ill-advised contract, and inserts words importing that he is acting 
 as guardian and not in his own personal capacity, this will not 
 shield him in such a case from personal liability to the ward's 
 estate because of such improvident bargain or contract.' 
 
 Where a party deals with a guardian as to matters in which 
 the guardian has not power to act, and the transaction results 
 beneficially to the ward, the guardian and the third party are 
 bound by such dealings, but the ward may himself repudiate the 
 transaction upon attaining his majority, and require the guardian 
 to place him in statu quo." 
 
 All advantageous bargains which a guardian makes with the 
 ward's funds are also considered subject to the ward's election, 
 either to repudiate or to uphold the contract and take the profits.* 
 This applies, in general, to improper acts, as where the guardian 
 speculates with the trust funds or invests them in his own busi- 
 ness, or, in a word, converts them to his own use.^ The ward 
 may either take the investment as he finds it, with all the profits, 
 or demand the original fund with interest, though he cannot 
 avoid a transaction in part and ratify it in part. For it is right 
 that the ward should enjoy all the advantages which have ac- 
 crued from the use of his own money; and it is also right that 
 the guardian should not derive gain from the ward's loss.' 
 
 § 223. Jurisdiction in equity over the accounts and deal- 
 ings of guardians — 
 
 "The circuit court in chancery may hear and determine all mat- 
 ters between guardians and their wards, require settlements of 
 the guardianship accotmts, remove any guardian for neglect or 
 breach of trust, and appoint or order another to be appointed in 
 his stead, and make any orders for the custody and tuition of an 
 infant, and the management and preservation of his estate."^ 
 
 At common law, the guardian is liable to an action of account 
 by the infant after he arrives at age; and the infant, while un- 
 der age, may, by his next friend, call the acting guardian, or any 
 
 ' Idem; Barnum v. Frost, 17 Gratt. 398, 405, 406. 
 
 = Schouler, Dom. Rel., 463. 3 Idem, 468. 
 
 < Idem, 510. s Idem. « Idem. 
 
 ' Code, chap. 82, sec. 13. 
 
GUARDIAN AND WARD. 335 
 
 preceding guardian, to account by bill in chancery.^ It is clear 
 from tbis statute, as well as the adjudged cases, that the ac- 
 counts of a guardian may be settled in a court of equity as well 
 as before a commissioner of accounts, and that the provision in 
 the Code authorizing a settlement ex parte before such commis- 
 sioner is merely cumulative and not exclusive.' 
 
 § 224. Surcharging and falsifying the accounts and set- 
 tlements of guardians — 
 
 "A guardian's accounts settled ex parte, returned to the court 
 and confirmed, is to be taken as prima facie correct, and as 
 standing on the same footing in this respect as accounts of ex- 
 ecutors and administrators, and only to be surcharged and falsi- 
 fied upon sufficient proof adduced by some party in interest." ' 
 
 But, though the accounts are made up by the guardian before 
 the commissioner, they are not conclusive as to him, and when 
 the ward subsequently brings suit to have the accounts set- 
 tled, and to obtain a decree for the amount due him, the guard- 
 ian can surcharge and falsify the settlement made by him, and 
 show that the apparent balance due from him to the ward as shown 
 by the settlement is not correct, if the guardian seeks so to do in 
 a proper and legal manner.* 
 
 A suit may be brought in equity against the guardian and his 
 siureties for a settlement of the guardianship accounts, and upon 
 such settlement a decree may be rendered in that suit against 
 the guardian and his sureties on his bond, for any balance that 
 may be due the ward, and thus avoid the necessity of more than 
 one suit.* 
 
 § 225. The termination of the guardianship — 
 
 The Code provides that at the expiration of his trust, the 
 guardian shall deliver and pay all the estate and money in his 
 hands or with which he is chargeable, to those entitled thereto.* 
 
 ' Burdett, Guardian, v. Cain, Adm'r, 8 W. Va. 282. 
 
 ' McKay v. McKay, 33 W. Va. 724; s. c. 11 S. E. Rep. 213, 2 Story, Eq. 
 Jur., I 1341; Bamum v. Frost, 17 Gratt. 424. 
 3 2 Bart., Ch. Prac. 701. See ante, ?§ 119, 160. 
 < Haught V. Parks, 30 W. Va. 243; s. c. 4 S. E. Rep. 276. 
 s 2 Bart. Ch. Prac. 697. See also McKay v. McKay, supra. 
 * Code, chap. 82, sec. 7. 
 
336 EQUITY PRINCIPLES. 
 
 The guardianship terminates with the death, or resignation with 
 the consent of the court, of the guardian, and being a mere per- 
 sonal trust it does not survive to the personal representative. 
 And it may be terminated by the guardian's removal for cause by 
 the court, or upon his failure to give a new bond when properly 
 required so to do.^ 
 
 "If a guardian commit waste he is liable to the ward at the 
 expiration of his guardianship for damages, and if after his pow- 
 ers as guardian are revoked, he collects any money on account 
 of any claim that was in his hands as guardian, he and his sure- 
 ties on his bond are accountable to the parties entitled thereto, 
 provided the payment was made in good faith by a person who 
 was not informed of the revocation, and who believed when he 
 made it that the party claiming to be guardian was so in fact, and 
 had authority as such to receive the money." ' 
 
 "A bond given by a guardian to his ward on settlement after 
 he or she comes of age, is no discharge of the .sureties on the 
 guardian's bond, although it is said to be prima facie evidence 
 against them; and a receipt in full by the ward, given shortly 
 after attaining his majority, after final settlement with the guard- 
 ian, does not in equity prevent him from showing that the guard- 
 ian is still indebted to him. And where one qualified as a guard- 
 ian of three infants, but never settled his accounts as such, and 
 after they became of age they executed a deed of release to one 
 of the two sureties on the guardian's bond, with a proviso 
 that it should not be understood to discharge the co-surety, it 
 was held that the release did not discharge the other surety ex- 
 cept as to such portion of the debt as the released surety might 
 have been compelled to pay. ' ' ' 
 
 The ward, after arriving at his majority, by his own acts may 
 be estopped, or by his own laches precluded, from recovering 
 from his guardian that which otherwise, he might by suit have 
 collected.* Thus, where the money of a ward is loaned out on 
 good security, and after the ward arrives at his majority, in con- 
 sideration of a sum of money paid to him by the party to whom 
 the money was loaned, he receipts to the guardian in full for 
 the principal and interest of all money and property in his hands 
 
 » 2 Bart., Ch. Prac. 712. 'Idem. ^Idetn, 712, 713. 
 
 ■• Kelly V. McQuinn, 42 W. Va. 774, 26 S. E. Rep. 517. 
 
GUARDIAN AND WARD. 337 
 
 belonging to liim, such receipt, in tlie absence of fraud, consti- 
 tutes a good acquittance, and estops the ward from recovering 
 the balance of the money from the guardian which had been so 
 loaned by him;' and especially is this the case after the lapse 
 of a considerable length of time." 
 
 ' Idem. "Idem. 
 
338 EQUITY PRINCIPLES. 
 
 CHAPTER XXI. 
 INFANCY. 
 
 I 226. Jvirisdiction in equity as to infants. 
 
 227. As to the power of infants to make contracts. 
 
 228. What are necessaries within the meaning of the law. 
 
 229. As to the disabilities of infancy. 
 
 230. When and how an infant may set aside a decree. 
 230a. The parent's emancipation of his child. 
 
 § 226. Jurisdiction in equity as to infants — 
 
 "The powers of a court of chancery in England to act as the 
 guardian of infants, and to exercise a general supervision over 
 all matters pertaining to their persons and estates, passed to and 
 is now generally exercised by courts of chancery in this country 
 without dispute. In the exercise of this jurisdiction, the court 
 may permanently fix the status of infants, even in disregard of 
 the legal rights of parents, when the welfare of the infants re- 
 quires it."^ 
 
 The court's jurisdiction extends to the due management and 
 preservation of the infant's estate, as well as to the application 
 of the personal estate and the rents, issues and profits of its real 
 estate to its maintenance and educafion;^ and to the care and cus- 
 tody of them, subject to the rules of positive law.' 
 
 § 227. As to the power of infants to make contracts — 
 
 Contracts of infants, it has been said by high authority, are of 
 three sorts — ^valid, voidable and void.* Of the first sort are those 
 which relate to necessaries, suitable to the degree and quality of 
 the infant;' and, it is said, to contracts of hiring and services for 
 wages; or to those acts which the law requires them to do.* 
 
 Whether a contract is void or voidable, it has been said, de- 
 pends on circumstances. If the contract may be for the benefit 
 or to the prejudice of the infant, it is voidable; but where it can 
 
 ' 2 Beach, Mod. Eq. Jur., \ 1022. » Idem, § 1023. 3 Idem, \ 1024. 
 
 * I Story, Eq. Jur., §§ 240-242. s Gillespie v. Bailey, 12 W. Va. 88. 
 
 ° 1 Story, Eq. Jur., \ 240. 
 
INFANCY. 339 
 
 never be for his benefit, it is utterly void.^ Where the contracts 
 of the infant are voidable, he may, upon attaining his majority, 
 either ratify or reject them at his option or that of his heirs or 
 legal representatives.* But in the case of Gillespie v. Bailey,* 
 our supreme court lays down the law to be that there is but one 
 single contract which is absolutely binding on an infant, and that 
 is an implied contract for necessaries furnished him; and that there 
 is but one single act of an infant which is absolutely void, and that 
 is the giving of a power of attorney; and that, with these ex- 
 ceptions, all other contracts of an infant, whether executory or 
 executed, are voidable at the option of the infant after he attains 
 the age of twenty-one years.* 
 
 § 228. W^hat are necessaries \vithin the meaning of the 
 la^v — 
 
 The question as to what constitute necessaries is a mixed one 
 of law and fact, to be determined by the circumstances of each 
 case as it arises.* But though this is true, it can with certainty 
 be said that food, lodging, clothing, medical attention and edu- 
 cation constitute five leading elements in the doctrine of the law 
 of necessaries.^ But in the application of this test, these words 
 should have a liberal construction, and with reference to the 
 social position, fortune, prospects, age, circumstances and general 
 situation of the infant himself.^ In most cases, reasonable coun- 
 sel fees for services rendered to an infant by an attorney are re- 
 garded by the law as necessaries for which the infant is liable.' 
 
 Articles for business purposes, agricultural or commercial, are 
 not necessaries; nor are horses, as a general rule.' 
 
 § 229. As to the disabilities of infancy — 
 
 There are many things that an infant cannot do by reason of 
 his non-age which the law denominates his disabilities, but this 
 
 ' Schouler's Domestic Relations (2d ed.), 534. 
 
 ^ Idem, 534, 535; Gillenwaters V. Campbell, 142 Ind. 529; s. c. 41 N. E. 
 Rep. 1041. 
 3 12 W. Va. 70, 88, 89. * But seeposi, ?? 229, 230. 
 
 s Schouler's Dom. Rel. (2d ed.) 550, 555. « Idem, 548; ante, § 207. 
 
 7 Schouler's Dom. Rel. (2d ed.) 548. 
 
 8 Askey v. Williams, 74 Tex. 294, 5 L. R. A. 176, and note; Kilgore v. 
 Rich, 83 Md. 859, 12 L. R. A. 859, and note. See ante, I tot. 
 
 9 House V. Alexander, 105 Ind. 109; s. c. 4 N. E. Rep. 891. 
 
340 EQUITY PRINCIPI<ES. 
 
 is designed for his benefit and protection. For instance, he can- 
 not waive his rights as plaintiff in a suit either by his next friend 
 or the attorney of such next friend;* nor can he be guilty of 
 laches within the meaning of this term as understood by the 
 courts;'' but an infant defendant may, through his guardian ad 
 litem, consent to the entry of a decree that is beneficial to him.' 
 And an infant, by his next friend, may bring suit to set aside a 
 decree, notwithstanding he has six months within which to do so 
 after his arrival at the age of twenty-one years.* 
 
 § 230. W^hen and hoiv an infant may set aside a decree — 
 
 Our statute provides that it shall not be necessary to insert in 
 any decree or order a provision allowing an infant to show cause 
 against it within a certain time after he attains the age of twenty- 
 one years. But in any case in which, but for this section, such 
 provision would have been proper, the infant may, within six 
 months after attaining the age of twenty-one years, show cause 
 in like manner as if the decree or order contained such provision.' 
 This statute is merely cumulative. The infant may bring a suit 
 by his next friend during his minority, as already shown, ^ to set 
 aside a decree and have any proper relief which his case may au- 
 thorize.^ But an infant is as much bound by a decree against 
 him as an adult, and is not permitted to impeach it except for 
 fraud, collusion or error.* But it is clear, also, that an infant, 
 until six months after majority, may set aside a decree prejudicial 
 to him for mere error.' 
 
 A judgment or decree must be rendered against an infant on 
 proof. There can be neither a judgment nor decree taken by 
 confession against the guardian ad litem of an infant, or one 
 taken by admissions in the pleadings made by him who stands as 
 the representative in court of the infant.'" 
 
 ' Crotty V. Bagle, 35 W. Va. 143; s. c. 13 S. E. Rep. 59. 
 » Knight V. Watt, 26 W. Va. 176; post, § 300. 
 3 Morris V. Va. Insurance Co., 85 Va. 588; s. c. 8 S. E. Rep. 383. 
 « Harrison v. Walton's Ex'r et al., 95 Va. 721, 30 S. E. Rep. 372, citing 
 several authorities. See post, ? 230. 
 
 s Code, chap. 133, sec. 7. ' Ante, \ 229. 
 
 ? Harrison v. Walton, 95 Va. 721, 30 S. E. Rep. 372. 
 
 ' Harrison v. Walton, supra; Zirkle v. McClure, 26 Gratt. 517; Penny- 
 aker v. Switzer, 75 Va. 671. 
 
 9 Lafferty v. Lafferty, 42 W. Va. 783, 26 S. E. Rep. 262. 
 " Kromer v. Friday, 10 Wash. 621, 32 X,. R. A. 671, note, citing, among; 
 
INFANCY. 341 
 
 § 230a. The parent's emancipation of his child— 
 
 The earnings of a minor child, who has not been emancipated, 
 while laboring for another without the consent and approbation 
 of the father, belong to the father.^ But the pay of a minor cit- 
 izen of the United States, as a soldier in the service thereof dur- 
 ing a war, belong to the minor and not to the father.' So, where 
 the father has emancipated his minor child, that is, has relin- 
 quished his right to his child's earnings, and allowed him to earn 
 for himself, and to receive and appropriate his own earnings to 
 his own use, the father Is no ■ longer entitled to the earnings of 
 his child during the time of such emancipation.' 
 
 Emancipation may be efEected by the oral or written agreement 
 of the parent, or by circumstances alone, or by operation of law, 
 as where the parent abandons his child or fails to support it.* 
 And a valid marriage of a minor operates as an emancipation;' 
 at least, to the extent of what may be necessary for the support 
 of himself and family.* 
 
 Emancipation does not remove the disabilities of infancy, 
 further than to allow him his own earnings and free him from 
 parental control.' 
 
 The earnings of a minor son which belong to him, when re- 
 ceived by the father, constitute a valuable consideration for a 
 deed from the father to the son,* and the son, when emancipated, 
 may give his mother the benefit of his labor on her separate 
 estate, and the profits thus made are not liable for the father's 
 debts.' 
 
 ' 'The emancipation of a child, and relinquishment by the par- 
 ent of his right to the future services and earnings of the child, 
 is perfectly valid as against the parent's creditors, even though 
 
 others, the following decisions: Dangerfield v. Smith, 83 Va. 81; Waterman 
 V. Lawrence, 19 Cal. 210, 79 Am. Dec. 212; Bank of Alexandria v. Patton, i 
 Rob. (Va.) 499. 
 
 ' Halliday v. Miller, 29 W. Va. 424, i S. E. Rep. 821. 
 
 ' Halliday v. Miller, supra; Gapen v. Gapen, 41 W. Va. 422, 23 S. E. Rep. 
 
 579- 
 3 Halliday v. Miller, supra; Tiffany's Persons and Domestic Relations, 258. 
 
 « Tiffany's Persons and Domestic Relations, 258. s Idem, 261. 
 
 6 Commonwealth v. Graham, 157 Mass. 73, 31 N. E. Rep. 706. 
 
 ' Commonwealth v. Graham, supra, citing Taunton v. Plymouth, 15 Mass. 
 
 204. 
 
 8 Halliday v. Miller, supra. 
 
 9 Trapnell v. Conklin, 37 W. Va. 242, 16 S. E. Rep. 570. 
 
342 KQXnTY PRINCIPI.BS. 
 
 the parent may be insolvent, and even though the intention is 
 to prevent the creditors from enforcing their claims against 
 such earnings, or property purchased with them. And this is 
 true though the child remains at home, and is hired by the 
 parent.'" 
 
 ' Tiffany's Persons and Domestic Relations, 264, 265. 
 
INJUNCTIONS. 343 
 
 CHAPTER XXII. 
 
 INJUNCTIONS. 
 
 231. Definition and classification of injunctions. 
 
 232. When a mandatory injunction will be issued. 
 
 233. Principles underlying the court's jurisdiction in injunction cases. 
 
 234. Classes of cases wherein relief by injunction may be afforded. 
 
 235. Injunctions to prevent irreparable wrong. 
 
 236. Injunctions to restrain waste. 
 
 237. Waste and who may maintain injunctions against its commission. 
 
 238. Distinction "between waste and trespass as applicable to injunctions. 
 
 239. Cases wherein injunctions will be awarded to stay waste. 
 
 240. Injunctions to prevent trespasses. 
 
 241. What the bill must allege, to obtain an injunction against a trespass. 
 
 242. Cases wherein injunction to trespass will lie. 
 
 243. Injunctions to prevent nuisances. 
 
 244. Definition and kinds of nuisances. 
 
 245. Injunctions against private nuisances. 
 
 246. Cases wherein injunctions to restrain nuisances have been awarded. 
 
 247. Injunctions to enjoin sales under executions. 
 
 248. Injunctions enjoining trust sales. 
 
 249. Power of trustee under deed of trust. 
 
 250. Specific cases illustrating the use of injunctions to prevent sales of 
 
 property under trust deeds. 
 
 251. Injunctions to restrain the infringement of patents and copyrights. 
 
 252. When preliminary injunction will be granted to restrain the infringe- 
 
 ment of patents and copyrights. 
 
 253. When previous trial at law necessary before awarding an injunction 
 
 to restrain the infringement of patents and copyrights. 
 
 254. AVhere the patent has expired and the infringement has ceased. 
 
 255. Injunctions in cases of municipal corporations. 
 
 256. Enjoining municipal ordinaifces. 
 
 257. Injunctions to prevent the creation of illegal indebtedness by 
 
 municipal and other public corporations. 
 
 258. When a municipality may resort to the use of injunction as a 
 
 remedial process. 
 
 259. Injunctions in cases of sureties. 
 
 260. When equity will indemnify the surety against the action of the 
 
 principal. 
 
 261. Injunctions in cases of partners. 
 
 262 Cases wherein injunctions will or will not be allowed by or against 
 
 partners. 
 263. Injunctions to restrain the collection of illegal taxes. 
 
344 EQUITY PRINCIPLES. 
 
 264. Injunctions to restrain the taking of private property for public use. 
 
 265. Injunctions against towns as to taking land for streets and side- 
 
 walks. 
 
 266. Injunctions against raHroad companies for appropriating land to 
 
 right of way. 
 
 267. When court will award an issue to determine the quantum of dam- 
 
 ages when land has been taken. 
 
 268. Injunctions to restrain the enforcement of judgments and decrees. 
 
 269. Injunctions to judgments because of after-discovered evidence. 
 
 270. Injunctions to judgments in cases wherein no appeal can be taken. 
 
 271. Cases illustrating the use of injunctions enjoining judgments. 
 
 272. Injunctions against decrees in chancery. 
 
 273. Injunctions to enjoin the prosecution of actions at law. 
 
 274. As to equitable and legal defenses. 
 
 275. Injunctions to prevent a multiplicity of suits. 
 
 276. Cases wherein equity will interpose to prevent a multiplicity of 
 
 suits. 
 
 277. Injunctions to enjoin an action or proceeding to make set-off 
 
 available. 
 
 278. Injunctions as to trades-unions and strikes. 
 
 279. Injunctions as to boycotts. 
 
 280. Illustrative cases of the use and refusal of injunctions. 
 
 281. When and by whom injunctions may be awarded. 
 
 282. When an .injunction takes effect. 
 
 283. Of the motion to dissolve an injunction. 
 
 284. When an injunction will be dissolved. 
 
 285. Of the effect of the dissolution of an injunction. 
 
 §231. Definition and classification of injunctions — 
 
 An injunction is a judicial process, operating in personam, 
 whereby a party is required to do, or to refrain from doing, a 
 particular thing according to the exigency of the writ.' As to 
 their duration, injunctions are divided into perpetual and tempo- 
 rary, the latter being used merely to preserve the subject-matter 
 of contention, or to prevent the doing of wrongful acts until a de- 
 termination can be had of the rights of the parties relating^ 
 thereto; while the former is conclusive upon the rights of the 
 parties.' A mandatory injunction is one which requires the do- 
 ing of a particular thing, and which will change the status of the 
 parties; while a preventive injunction restricts the doing of the 
 thing and preserves the status until the rights of the parties are 
 determined." In the former case, the right of the party must be 
 clear; in the latter, if the right be doubtful, the court may issue 
 
 ' 2 Beach, Mod. Eq. Jur., § 638. 'Idem. ^ Idem,\f>y). 
 
INJUNCTIONS. 345 
 
 the injunction to prevent any change in status until the final de- 
 termination of the rights of the parties.' 
 
 § 232. When a mandatory injunction vrill be issued — 
 
 The right to a mandatory injunction in a proper case is un- 
 doubted; and it may be granted though the injury sought to be 
 restrained has been completed before filing the bill. An injunc- 
 tion of this kind is rarely granted before final hearing, though it 
 may issue interlocutorily where extreme or serious damage would 
 ensue from withholding it, as in case of interferences with ease- 
 ments; but this is done with caution and hesitation, and only in 
 extreme cases. ^ 
 
 A mandatory injunction wUl issue at the instance of a munici- 
 pal corporation to compel a railway company to restore a street 
 to its former condition, where it has laid its track upon it, and 
 thus partially destroyed its use as a street or highway.' So, also, 
 it will lie to cause an obstructed or closed private way to be 
 cleared and opened for the use of the owner.* 
 
 ■ Idem. 
 
 = 2 Beach, Mod. Eq. Jur., § 639. Mandatory injunctions will only be 
 ordered in cases of extreme necessity. Delaware & L. W. Ry. Co. v. Cen- 
 tral Stock Yard and Transit Co., 43 N. J. Eq. 605; s. c. 12 Atl. Rep. 484. A 
 mandatory injunction may issue at the inception of the suit in the protection 
 of an easement and other rights of like nature. Rodge v. Giese, 43 N. J. Eq. 
 343, II Atl. Rep. 484. 
 
 " In an action to force defendant to remove an obstruction over a certain 
 ravine which has caused an overflow and damages to an ancient highway 
 used by plaintiff, witnesses for defendant testified that the ravine had never 
 been farmed; that for fifty years there had been a well defined water-course, 
 for running, as well as for surface, water, over complainant's land, with an 
 outlet through the ravine, although the flow ceased during the dry season. 
 Held, sufficient ground for a mandatory injunction." Schneitzius v. Bailey, 
 45 N. J. Eq. 178, 13 Atl. Rep. 245. 
 
 The fact that a natural gas company has completed its wrongful act in 
 turning off the flow of gas from plaintiff's factory, will not prevent an issu- 
 ance of a preliminary injunction, mandatory in its effect, compelling it to 
 restore a flow of the gas. Whitman v. Fayette Fuel Gas Co., 139 Pa. 493. 
 
 There is a very valuable note to Murdock^s case reported in 20 Am. Dec. 
 389-402, relative to mandatory injunctions, which we cannot append to the 
 text for lack of space. 
 
 3 City of Moundsville v. Ohio R. R. Co., 37 W. Va. 92; s. c. 16 S. E. Rep. 
 
 514. 
 * Boyd V. Woolwine, 40 W. Va 282; s. c. 21 S. E. Rep. 1020; Rogerson v. 
 
 Shepherd, 33 W. Va. 307; s. c. 10 S. E. Rep. 632. 
 
346 BQUITY PRINCIPLES. 
 
 As clearly stated by a recent author,^ many occasions may 
 arise which render a mandatory injunction necessary. Thus a 
 party who has diverted water from its proper channel may be 
 compelled by mandatory injunction to restore it. So a mandatory 
 injunction issues to remove a nuisance; to compel the acceptance 
 of freight by a common carrier; to prevent the continuance of 
 trespasses for which there is no adequate legal remedy ; and to 
 compel the defendant to deliver up the possession of real estate 
 which had been adjudged to belong to the plaintiff by decree. 
 
 It will also issue to require the lessee of a railroad to operate 
 the line of road to which the lease relates in a suit brought for 
 that purpose by the lessor.* 
 
 As has already been stated, mandatory injunctions will not 
 issue interlocutorily except in extreme cases, and only then to 
 prevent serious damage.' The reason for this is apparent, in 
 that it calls upon the defendant in many instances to do some- 
 thing on a mere ex parte motion before the merits of the case are 
 known to the court fully, and upon a complete investigation of 
 the case the court might be called upon to place the defendant in 
 statu quo, which might have to be done at great cost, and even sacri- 
 fice to the defendant himself. But nevertheless, in a clear case 
 of prospective injury for which the plaintiff has no adequate 
 remedy at law, a preliminary mandatory injunction will be issued.* 
 
 ' Bispham's Prin. Eq. (stli ed.), sec. 400. 
 
 = Southern R. Co. v. Franklin & P. R. Co. (Va.), 44 L. A. R. 297. 
 
 3 Ante, \ 232. 
 
 * Gardner v. Stroever, 81 Cal. 148, 6 I,. R. A. 90; Central Trust Company 
 V. Moran, 56 Minn. 188, 29 L. R. A. 212; Toledo, Ann Arbor & North 
 Michigan R. Co. v. Pennsylvania Co., 19 L. R. A. 395; City of Des Moines 
 V. Des Moines Water-works Co., 00 Iowa, 000, 64 N. W. Rep. 269. 
 
 In the note to Murdock's Case, 20 Am. Dec, at page 394, the editor says: 
 The authorities on the question as to whether or not a mandatory injunc- 
 tion will be granted on motion or interlocutory application before the final 
 hearing, are very conflicting. The text-writers generally agree that it is 
 settled, at least in England, that such an injunction may be granted on 
 interlocutory application, but that it is usually done with reluctance, i 
 Joyce on Inj. 433; Kerr on Inj. 232; High on Inj., sec. 2; Drewry on Inj. 
 260; Bispham's Princ. Eq., sec. 400. Mr. Bispham further remarks, in the 
 section last cited, that the inclination of the American courts is against the 
 issuance of such injunctions before the final hearing. For many of the 
 English and American cases relating to the granting of a mandatory injunc- 
 tion on an interlocutory application therefor, see note 20 Am. Dec. 394-400. 
 In the following cases mandatory injunctions were issued: 
 
INJUNCTIONS. 347 
 
 § 233. Principles underlying the court's jurisdiction in 
 injunction cases — 
 
 It is elementary law that an injunction will not be awarded 
 where the courts of law afford an adequate remedy.^ In. many, if 
 not most cases, too, it must appear that irreparable injury is 
 threatened;'' and the party seeking the injunction must show, not 
 only a clear legal right, but a well-grounded apprehension of im- 
 mediate injury thereto,' and that the legal remedy is incomplete 
 and inadequate.* Equity will not, therefore, interfere to restrain 
 
 "The tenant of an appartment, by consent of the owner of the house, put 
 in water-pipes, to connect with the main pipes to furnish water to his apart- 
 ment. Held, that the right to receive water through the main pipes was not 
 a mere license, revocable at the will of the owner of the premises; and a 
 mandatory injunction would issue to compel the owner to permit the water 
 to flow through the main pipes, which he had stopped up." Brauns v. 
 Glesige, 130 Ind. 167, 29 N. E. Rep. 1061. 
 
 "Where it is found that plaintiff has a right of way over a driveway, 
 and that defendants have obstructed it by fences, with intent to exclude 
 plaintiff permanently therefrom, that the fences can be removed without any 
 great or disproportionate injury to defendant's property, and that plaintiff 
 has not been guilty of laches, he is entitled to a mandatory injunction for 
 their removal." Boland v. St. John's Schools, 163 Mass. 229, 39 N. E. 
 Rep. 1035. 
 
 On the subject of mandatory injuctions see the following authorities: 
 Starkie v. Richmond, 155 Mass. 188, 29 N. E. Rep. 770;- Attorney-General 
 V. Algonquin Club, 153 Mass. 454, 27 N. E. Rep. 2; Tucker v. Howard, 28 
 Mass. 361; Linzee v. Mixer, loi Mass. 512; Rigney v. Tacoma Light & W. 
 Co., 9 Wash. 576, 26 L. R. A. 425; Butchers' and Drovers' Stockyards Co. v. 
 Louisville & N. R. Co., 14 C. C. A. (XJ. S.) 290. 
 
 From the note to the case of City of Moundsville v. Ohio River R. Co., 20 
 L. R. A. i6i, we take the following: 
 
 "Usually where there is no laches on the part of the plaintiff, a covenant 
 in the deed or contract that a building shall not extend farther in certain 
 directions, or beyond such a line, or be raised to a greater height, will be en- 
 forced by a mandatory injunction." Manners v. Johnson., L. R. i Ch. Div. 
 ■673; Gaskin v. Balls, L. R. 13 Ch. Div. 324; Franklin v. Tuttin, 5 Madd. 46; 
 Clark V. Martin, 49 Pa. 289; Morris v. Grant, 24 Week. Rep. 55. 
 
 For a thorough consi'leration of this subject, see i Beach, Inj., §? 97, 98, 
 102-104; 2 Idem, 1012, 1019, 1036, 1049, 1060, 1075, ii6o, 1249, 1392; 3 Pomeroy 
 Eq. Jur. (2d ed.), § 1359. 
 
 ■ 2 Beach, Mod. Eq. Jur., ? 640; Surber v. McClintic, 10 W. Va. 236; 
 Shepherd v. Graff, 34 W. Va. 123; s. c. 11 S. E. Rep. 997, 998; Kanawha 
 & M. Ry. Co. V. Ryan, 31 W. Va. 364, 6 S. E. Rep. 924. 
 
 » 2 Beach, Mod. Eq. Jur., ? 641. 3 Idem, \ 642. 
 
 « 3 Pom., Eq. Jur. (2d ed.), | 1338. 
 
348 EQUITY PRINCIPLES. 
 
 the breacli of contract, or the cotamission of a tort, or the viola- 
 tion of any right, when the legal remedy by way of compensa- 
 tory damages would be complete and adequate. '^ 
 
 The injunction should not issue because of an act done and 
 completed, though contrary to law, unless under peculiar circum- 
 stances.'' Nor as a general rule has equity any jurisdiction to 
 prevent by injunction the violation of a merely personal con- 
 tract unless such contract be of the class or character capable of 
 being specifically enforced.' 
 
 § 234. Classes of cases Tvherein relief by injunction may 
 be afforded — 
 In classifying the cases in which the courts are usually called 
 upon to grant injunctions, we here, in the main, follow the ar- 
 rangement adopted by Mr. Barton, he having divided the sub- 
 ject into the following heads: (I) Injunctions to prevent irre- 
 parable wrong; (II) To restrain waste; (III) To prevent tres- 
 passes; (IV) To prevent nuisances; (V) To enjoin sales under 
 executions; (VI) To enjoin trust sales; (VII) To enjoin the in- 
 fringement of patents and copyrights; (VIII) In cases of mu- 
 nicipal corporations; (IX) In cases of sureties; (X) In cases of 
 partners.* To this ma5' be added injunctions; (XI) To restrain 
 the collection of illegal taxes; (XIJ) To enjoin the taking of pri- 
 vate property for public uses; (XIII) To enjoin the enforcement 
 of judgments and decrees; (XIV) To enjoin the prosecution of 
 actions at law; (XV) To prevent a multiplicity of stiits; and 
 (XVI) In miscellaneous cases. 
 
 (I) 
 § 235. Injunctions to prevent irreparable v^rong — 
 
 "As the general jurisdiction of courts of chancery is founded 
 in a lack of remedy in the courts of law, so especially is relief 
 given by means of injunctions, because there is none or an in- 
 adequate remedy at law, and because compensation by way of 
 damages will not be suflScient to restore the party to his rights, 
 or to replace the wrong that may be done him. It will be found 
 upon careful investigation that all grounds upon which the right 
 
 'Idem. 
 
 ' Chesapeake & O. R. R. Co. v. Patton, 5 W. Va. 234; 2 Beach, Mod. 
 Eq. Jur., § 645. 
 
 3 Shepherd v. Graff, supra. * 2 Bart., Ch. Pr. 430. 
 
INJUNCTIONS. 349 
 
 to an injunction rests are traceable to this general rule of pre- 
 venting irreparable wrong or miscbief . ' ' ^ 
 
 In applying the principle of irreparable injury, where the legal 
 right asserted is not sufficiently clear to enable the court to form 
 an opinion, the awarding of an injunction in the first instance 
 wiU be governed by considerations of the relative convenience and 
 inconvenience which may result to the parties from granting or 
 withholding it.'' If, upon balancing these matters, it is apparent 
 that the act complained of is likely to result in irreparable wrong 
 or injury to the plaintiff, and the matter of inconvenience pre- 
 ponderates in his favor, the injunction will be granted.' But if, 
 on the other hand, greater danger or inconvenience is likely to fol- 
 low from granting than from withholding the relief, or where the 
 inconveniences are about .equally divided between the parties, the 
 injunction will be refused.* 
 
 The principles upholding this essential doctrine of equity juris- 
 diction in the matter of injunctions are considered in several of 
 the subsequent sections of this chapter. 
 
 (11) 
 § 236, Injunctions to restrain w^aste — 
 
 What constitutes waste depends upon the facts and circum- 
 stances of each particular case as it arises.^ "But chancery goes 
 greater lengths than the courts of law in staying waste, and 
 liberally exercises its jurisdiction for the prevention of irrepara- 
 ble injury; thus, while the law does not notice waste of this 
 character, equity will interfere to prevent the destruction of shade 
 or ornamental trees; malicious waste committed by a tenant who 
 by express agreement is without impeachment of waste; and 
 waste committed against mere equitable owners of an inherit- 
 ance." ' So, too, if a lessee by the terms of his lease is restricted 
 to a particular use of the demised premises, he will generally be 
 restrained from any other use of them, even though no irrepa- 
 rable injury be shown to result from the breach of the lease-con- 
 tract.' And equity will, also, in a proper case, grant an injunc- 
 tion to restain the tenant from doing a certain act, whether it 
 
 ■ I Bart., Ch. Pr. 430, 431. ' High on Inj., I 13. 
 
 3 Idem. * Idem. 5 i Bart., Ch. Prac. 431. ' Idem. 
 
 ' Frank & Co. v. Brunnemann, 8 W. Va. 462; Maddox v. White, 4 Md. 
 72, 59 Am. Dec. 67. 
 
35° EQUITY PRINCIPLES. 
 
 amounts to waste or not, provided it be directly contrary to the 
 tenant's own covenant, or even in contravention of an agreement 
 which may be inferred from the course of dealing between the 
 parties/ 
 
 An injunction to stay waste will be granted, though there is no 
 suit pending, and though no action can be maintained against the 
 tenant at law.'' 
 
 § 237. W^aste and who may maintain injunction against 
 its commission — 
 
 "Waste is a substantial injury to the inheritance done by one 
 having a limited estate, either of freehold or for years, during 
 the continuance of his estate." ' The essential character of waste 
 is that the party committing it is in rightful possession, and that 
 there is privity of title between the parties.* As we have just 
 seen,^ an injunction will issue in favor of a landlord, the owner 
 of the title, against his tenant. So, also, in favor of a remainder- 
 man or reversioner;^ and even a contingent remainderman,^ but not 
 to a remainderman so as to interfere with the tenant' s proper enjoy- 
 ment of the tenancy;^ in favor of a landlord, to prevent lessee from 
 making material alteration in a dwelling-house, as by changing it 
 into a shop or warehouse;' in favor of a creditor against a pur- 
 
 ' Frank & Co. v. Brunnemann, 8 W. Va. 462. 
 
 " Kane v. Vanderburgh, i Johns. Ch. 10, i N. Y. Ch. Rep. (Law Ed.) 40, 
 and note. Nor is it essential to this remedy that there should be an actual 
 lis pendens in a court of law. There are numerous cases in chancery, as 
 Lord Hardwicke has frequently observed (Perrot v. Perrot, 3 Atk. 94; Robin- 
 son v. LiSer, 3 Atk. 210; Farrant v. Level, 3 Atk. 723; Garth v. Cotton, i 
 Ves. 556), in which the court has interposed to stay waste by the tenant 
 where no action can be maintained against him at law. Thus, where there 
 is lessee for life, remainder for life, remainder in fee, the mesne remainder- 
 man cannot bring waste, nor the remainderman in fee, but chancery will in- 
 terpose and stay the waste. So equity will in many cases restrain waste, 
 though the lease contain the clause without impeachment of waste, and 
 which takes away the remedy at law, as where this power is exercised in an 
 unreasonable manner and against conscience Aston v. Aston, i Ves. 264; 
 Strathmere v. Bowes, 2 Bro. 88. 
 
 3 Fetter on Equity, 299, citing Co. Litt. 53a. 
 
 * Idem. s Anie, S 236. « Idem. 
 
 ' University v. Tucker, 31 W. Va. 621; s. c. 8 S. E. Rep. 410. 
 
 ' Greathouse v. Greathouse, 46 W. Va. 21, 32 S. E. Rep. 994. 
 
 s I Bart., Ch. Prac. 432. 
 
INJUNCTIONS. 35 1 
 
 chaser of real estate so as to preserve unimpaired the lien of 
 Such creditor.^ 
 
 § 238. Distinction between waste and trespass as ap- 
 plicable to injunctions — 
 
 An examination of the authorities will show that there has 
 been and is now a tendency to blend trespass and waste as 
 grounds for injunctions against injuries of this character;^ but 
 these two classes of injuries to real estate are not the same, and 
 should be distinguished from each other. Waste, as we have 
 just seen from its definition, involves a privity of estate or title 
 between the plaintiff and defendant,' while in trespass there is 
 no privity of title or estate. In waste, where there is a privity 
 of estate between the party applying for the injunction and him 
 who is doing or about to do the act, it is not necessary that the 
 act should work irreparable injury to induce the court to grant 
 the injunction;* while in trespass the plaintiff in the injunction 
 must have good title and the act complained of must work irrep- 
 arable injury.' 
 
 ' I Bart. , eh. Prac. 432. ' 'An injunction to stay waste ought to be granted 
 to a vendor against a vendee, to -whom he has sold a tract of land in fee 
 simple retaining the title as security for the purchase-money, who brings 
 his suit to subject the land to the payment of the purchase-money, and the 
 bill charges the defendant with cutting timber on the land in a manner 
 calculated to render it an incompetent security for the payment of the pur- 
 chase-money. In such a bill, it is not necessary to allege the insolvency of 
 the defendant." Core v. Bell, 20 W. Va. 169. See also Scott v. Wharton, 2 
 Hen. & Munf. 25. 
 
 " 2 Story, Eq. Jur., ? 918; 2 Beach, Mod. Eq. Jur., J 730. 
 
 3 I Washburn on Real Property (4th ed.), 152; Whitney v. Morrow, 34 
 Wis. 644. * I Washburn on Real Property (4th ed.), i6i. 
 
 5 Schoonover v. Bright, 24 W. Va. 698; Cresap v. Kemble, 26 W. Va. 603. 
 "Waste is distinguished from trespass, in that the latter is conmiitteJ by 
 strangers to the title, who have no right of possession, and consists usually 
 of one or more distinct acts of destruction." Lander v. Hall, 69 Wis. 326; 
 Duval V. Waters, i Bland (Md.), 569, 18 Am. Dec. 350. 
 
 "In general, waste is the abuse or destructive use of property by him who 
 has not an absolute, unqualified title; and in general, trespass is an injury or 
 use without authority of the property of another by one who has no rigl.t 
 whatever." 
 
 "The distinction between waste and trespass consists in the former being 
 the abuse or destructive use of property by one who, while not possessed of 
 the absolute title thereto, has yet a right to its legitimate use; trespass being 
 
352 BQUITY PRINCIPI,aS. 
 
 § 239. Cases \vherein injunction will be aw^arded to stay 
 vraste — 
 
 Somewliat akin to the subject of waste is where one is in pos- 
 session of land under a claim of title, and another also claims the 
 same land, and to recover the same the latter has brought eject- 
 ment to determine the question of ownership, and the one in pos- 
 fefsion is cutting and removing, or about to do so, the timber 
 upon such land. Here equity will lend its aid by injunction to 
 restrain the defendant in ejectment from cutting and removing 
 the timber on the tract of land for the recovery of which eject- 
 ment has been brought, upon a showing of irreparable injury 
 unless such aid is given. ^ If upon the trial of the action of 
 ejectment, judgment is rendered in favor of the defendant therein, 
 the court should dissolve the injunction and dismiss the bill.^ It 
 if said in the case of King v. Buskirk, cited in the foot notes, 
 that the granting of an injunction on a bill filed ancillary to an 
 action of ejectment is a departure from the ancient practice in 
 equity, citing in support of this statement Pillsworth v. Hoptor^ 
 and Norway v. Rowe} It is the product of modern practice. It 
 is not a matter of absolute right, nor does such an injunction 
 issue as a matter of course. There must appear prima facie a. 
 title in the complainant; and there must also appear danger of 
 irreparable injury, such injury as cannot be compensated in 
 money. Nor must the court look only to the injury threatened 
 the complainant. It must also consider the interests of the 
 defendant.^ 
 
 In the following cases equity has taken jurisdiction by injunc- 
 tion to stay waste: "Cutting down timber of a young growth, 
 or trees used for shade or ornament; injuries to vistas, avenues 
 and rides; cutting or removing timber when it constitutes the 
 chief value of the land, and by whomsoever it may be committed; 
 removing crops, straw and manure; sowing the land with hurtful 
 crops; injury to property by a purchaser who has not paid the 
 purchase-money; removing mineral deposits; taking coal from 
 mines, or ore from banks; changing a dwelling-house into a store, 
 
 an injury to property by one who has no right whatever to its nse." High 
 on Injunction (3d ed.), J 650. 
 
 ' Cox V. Douglass, 20 W. Va. 176. 
 
 ' King V. Buskirk, 24 C. C. A. (U. S. ) 82; King v. Williamson, 25 C. C. A. 
 (U. S.) 355- 3 6 Yes. 51. * 19 Ves. 147. 
 
 s King V. Buskirk, supra. 
 
INJUNCTIONS. 353 
 
 or a building rented for a post-office into a beer hall; destroying 
 family graveyards, defacing gravestones, or obliterating inscrip- 
 tions. "^ 
 
 Injunctions to stay waste have also been granted in the follow- 
 ing instances: to preserve the inheritance of real estate as where 
 a miU is about to be dismantled by execution creditors of the 
 owner, who have levied on the fixtures attached thereto;^ to pre- 
 vent a life-tenant from taking clay from the soil and manufactur- 
 ing the same into brick for market and sale;^ to prevent a life- 
 tenant from unlawfully removing from the fee of the land the 
 petroleum or mineral oil in place thereunder, as the same is a 
 part of the inheritance.' 
 
 Under this section it is seen that equity will lend its aid to pre- 
 vent the destruction of timber on land which is in Utigation be- 
 tween the parties to the injunction suit, and that such litigation 
 involves the very question of title itself, being an action brought 
 expressly to determine the pure matter of title. But all that 
 equity in a case of this character does, is to preserve intact the 
 subject of contest, to which the law court will ultimately determine 
 the right and title. 
 
 And it is well settled that equity will even go further than this, 
 and prevent, by injunction, acts of irreparable injury to land, even 
 though there be a controversy as to the title thereto, and thus taking 
 jurisdiction because of threatened irreparable injury, will go on 
 and give full relief, although in doing so it be necessary to de- 
 cide between two adverse titles to real estate. ° Thus, the unlaw- 
 ful extraction of petroleum oil or gas from land, being a part of 
 the land itself, is an act of irreparable injury, and will be en- 
 joined, and the title to such land settled therein.* 
 
 But in such a case, the bill must allege irreparable injury, as 
 well also as the facts constituting the irreparable injury.^ 
 
 ' I Bart., Ch. Prac. 434. 
 
 == Patton, Malone & Co. v. Moore et al., 16 W. Va. 428. 
 1 University v. Tucker, 31 W. Va. 621; s. c. 8 S. E. Rep. 410. 
 ■•Williamson v. Jones, 39 W. Va. 231; s. c. 19 S. E. Rep. 436, 25 h. R. 
 A. 222. 
 s Bettman v. Harness, 42 W. Va. 433, 26 S. E. Rep. 271, 36 L. R. A. 566. 
 ' Idem. ' Idem, in the opinion of the court. 
 
 23 
 
354 EQUITY PRINCIPI,ES. 
 
 § 240. Injunctions to prevent trespasses — 
 
 The practice of granting injunctions in cases of trespass is; 
 more liberal now than it was formerly, but yet a clear case of the 
 inadequacy of the legal remedy must still be shown in order to 
 justify the interference of the court of chancery.' 
 
 A mere trespass to property will not be enjoined, unless the 
 plaintiff shows on the face of his bill that he has a good and 
 dear title to the property itself, and that the act sought to be- 
 enjoined will operate to the plaintiff's irreparable injury." An 
 injury from a trespass to real property is treated by the courts as 
 irreparable when a judgment for the damages occasioned there- 
 from would be unavailing, as where the defendant is insolvent.*" 
 
 But this is not the sole test of irreparable injury. As said by 
 Brannon, J., in Bettman v. Harness,* it is impossible to inflexibly 
 define this term, as the rights of property and its uses change so; 
 so many new rights of property with new uses arise as time goes- 
 on. ' 'The word irreparable means that which cannot be repaired, 
 restored, or adequately compensated for in money, or where the 
 compensation cannot be safely measured." 
 
 The learned judge in this case further says: "An injury ta> 
 realty may be incapable of compensation in money for several 
 reasons: (i) It may be destructive of the very substance of the 
 estate; (2) it may not be capable of estimation in terms of money; 
 (3) it may be so continuous and permanent that there is no in- 
 stant of time when it can be said to be complete, so that its ex- 
 tent may be computed; (4) it may be vexatiously persisted in, in 
 spite of repeated verdicts. ' ' ' 
 
 Equity will not enjoin a mere naked trespass when nothing 
 more than this appears in the bill," even though the trespass con- 
 sist in the cutting and removal of valuable .standing timber, 
 
 • Carney v. Hadley, 32 Fla. 344; s. c. 22 L. R. A. 233; I,a2zell v. Garlow, 
 44 W. Va. 466, 30 S. E. Rep. 171. 
 
 = McMillan v. Ferrell, 7 W. Va. 223; Western M. & M. Co. v. Virginia 
 Cannel Coal Co., 10 W. Va. 250; Cox v. Douglass, 20 W. Va. 175; Schoono- 
 ver V. Bright, 24 W. Va. 698; Cresap v. Kemble, 26 W. Va. 603; Watson v. 
 Ferrell, 34 W. Va. 406; s. c. 12 S. E. Rep. 704; Hanley v. Watterson, 39 W. 
 Va. 214; s. c. 19 S. E. Rep. 536; Lazzell v. Garlow, supra; Bums v. Mearns^. 
 44 W. Va. 744, 30 S. E. Rep. 112. 
 
 3 Hanly v. Watterson, 39 W. Va; 214; s. c. 19 S. E. Rep. 536. 
 
 ■»42 W. Va. 433, 26 S. E. Rep. 271, at p. 272. 
 
 5 See the reasoning in the opinion of the court in this case. 
 
 " Cox V. Douglass, 20 W. Va. 175; McHilson v. Ferrell, 7 W. Va. 223. 
 
INJUNCTIONS. 355 
 
 which may constitute the chief value of the land whereon the 
 timber stands.' 
 
 § 241. 'What the bill must allege, to obtain an injunction 
 against a trespass — 
 
 To obtain an injunction against a trespass, the bill on its face 
 should aver (a) an undisputed title in the plaintiff, and (d) irre- 
 parable injury because of the acts complained of ;^ and it is not 
 sufficient that the bill contain mere general averments of irrepa- 
 rable mischief or injury, but the facts constituting such injury 
 should be set forth in the bill.' 
 
 In Farland v. Wood, supra, the court holds that a bill of in- 
 junction in a case of trespass should contain a distinct averment 
 of irreparable injury, as well also as the facts upon which such 
 averment is predicated.* 
 
 § 242. Cases w^herein injunction to trespass Tvill lie — 
 
 The remedy by injunction is applicable as well to staying a 
 trespass which is apprehended as to one already being commit- 
 ted;* and appUes to injuries to both personal and real estate; to 
 the former generally because, by reason of a pretium affedionis, 
 the remedy by action at law is inadequate ;° and to the latter be- 
 cause the threatened acts would be ruinous or irreparable.' 
 
 The following are some of the cases wherein a court of equity 
 wiU interpose by injunction to stay or inhibit acts of trespass: 
 when "a mere trespasser digs into and works a mine; when an 
 adjoining owner is making a dangerous excavation; when timber 
 is being cut in collusion with a tenant; when, pending a suit re- 
 specting the boundaries, ornamental trees or timber is being cut 
 on disputed territory; to prevent a municipal corporation from 
 proceeding to drain its lands by the construction of artificial 
 channels in the direction of lands adjoining the corporation, to 
 the permanent injury of such adjoining lands." * 
 
 And injunctions have been refused "where the injury com- 
 
 » Watson V. Ferrell, supra. 
 
 ' McMillan v. Ferrell, 7 W. Va. 223; Cox v. Douglass, 20 W. Va. 175. 
 3 Schoonover v. Bright, 24 W. Va. 698; Watson v. Ferrell, 34 W. Va. 406; 
 s. c. 12 S. E. Rep. 724; Farland v. Wood, 35 W. Va. 458; s. c. 14 S. E. Rep. 
 
 140. 
 < See Bettman v. Harness, supra, in the opinion of the court. 
 5 I Bart., Ch. Pr. 435. ' Idem. 1 1dem. « Idem, 436. 
 
356 EQUITY PRINCIPLES. 
 
 plained of was the erection of a wooden fence on part of the 
 complainant's premises; where a ditch was allowed to remain out 
 of repair, whereby water percolated through the bank and 
 flooded complainant's meadow; where a party undertook by 
 building to encroach upon a private alley, it not appearing that 
 the building would materially injure the way; where mud and 
 earth were thrown on complainant's land; and in restraint of 
 trade, where there was an adequate remedy at law."' 
 
 § 243. Injunctions to prevent nuisances — 
 
 "The distinction between a trespass and a nuisance is said to 
 consist in the former being a direct infringement of one's rights 
 of property, while in the latter case the infringement is the re- 
 sult of an act which is not wrongful in itself, but only in the con- 
 sequences that may flow from it. In the one case the injury 
 is immediate, in the other it is consequential, and generally re- 
 sults from the commission of an act beyond the limits of the prop- 
 erty affected." ' 
 
 The jurisdiction of equity to grant injunctions against nui- 
 sances is well established and frequently exercised. The ground 
 of this jurisdiction is the prevention of irreparable injury and 
 multiplicity of actions.' A final injunction, however, restrain- 
 ing a nuisance, will not be granted except where the plaintiff's 
 right is dear or is undisputed; and where the legal right is doubt- 
 ful or is in dispute equity will usually require the right of the 
 plaintiff to be first established at law.* 
 
 "But where the injury from a nuisance is manifest and con- 
 tinuous, or constantly recurring, and the right to have it abated 
 is clear, a court of equity will grant the appropriate relief with- 
 out requiring the injury to be first established by an action at 
 law."" 
 
 § 244. Definitions and kinds of nuisances — 
 
 ' 'Whatever unlawfully annoys or doth damage to another is a 
 nuisance.' 
 
 "Anything constructed on a person's premises, which of itself 
 
 ^Idem. » I Bart., Ch. Prac. 437. ' 2 Beach, Mod. Eq. Jur., § 737. 
 •■Idem, \ 738. ^Idem. ' 2 Bl. Com. , Bk. 3d, page 4. 
 
INJUNCTIONS. 357 
 
 or by its intended use directly injures a neighbor in the proper 
 use and enjoyment of his property is a nuisance. ' ' ' 
 
 Whatever is injurious to the health, or indecent, or offensive to 
 the senses, or an obstruction to the free use of property, so as 
 to essentially interfere -with the comfortable enjoyment of life 
 or property, is a nuisance.'' 
 
 A nuisance is either public or private; the former affects the 
 rights enjoyed by citizens as members of the public and to which 
 every citizen is entitled;' it is a common nuisance and affects the 
 people at large, and is an offense against the state, but an action 
 may be brought in his own name by any one who suffers damage 
 peculiar in kind or degree beyond what is common to him and to 
 others;* the latter affects one or more as private citizens, and not 
 as part of the public, and is ground for a civil suit only.* 
 
 An individual cannot enjoin a public nuisance, unless it works 
 special and peculiar injury to him, and that injury must not be 
 trivial, or such as may be compensated in damages, but must 
 be serious, affecting the substance and value of the plaintiff's 
 estate.' 
 
 § 245. Injunctions against private nuisances — 
 
 Every man has the full and exclusive right to the use and en- 
 jo5nnent of his own property and to do with it as he pleases, but 
 in subordination to the principle that in so using his own he may 
 not injure his neighbor in the use and enjoyment of the same 
 right of property.^ 
 
 Private nuisances may arise from the very act itself,* or from 
 the locality of the defendant's business, though the business itself 
 
 ' Grady v. Wolsner, 46 Ala. 381. = Hackney v. State, 8 Ind. 494. 
 
 3 King V. Morris, etc., R. R. Co., 18 N. J. Eq. 397. 
 
 ■• Powell V. Bentley & Gerwig Furniture Co., 34 W. Va. 804; s. c. 12 S. E. 
 Rep. 1085 
 
 ^Idem. 
 
 « Talbot V. King, 32 W. Va. 6; s. c. 9 S. E. Rep. 48; Bridge Co. v. Sum- 
 mers, 13 W. Va. 476. 
 
 ? Powell V. Bentley & Gerwig Furniture Co., 34 W. Va. 804; s. c. 12 
 S. E. Rep. 1085; State v. Yopp, 97 N. C. 477, 2 Am. St. Rep. 305, 2 S. E. Rep. 
 
 458. 
 
 « Dwight V. Hayes, 150 111. 273; s. c. 37 N. E. Rep. 218; Iliff v. School Di- 
 rectors, 45 HI. App. 419. 
 
358 BQUITY PRINCIPLES. 
 
 is a legitimate one/ or from tlie motive or manner in which the 
 act complained of is done.'' 
 
 Illustrations of nuisances from the very act itself, or nuisances 
 per se, are such as the construction of a privy so as to emit 
 noxious smells and filthy matter to the adjoining property,' and 
 the pollution of a running stream of water by the emptying of 
 sewerage therein by means of a drainage system constructed for 
 that purpose.* A plain and clear illustration of a nuisance aris- 
 ing from the locality of the defendant's business, is the manu- 
 facture and storage of gunpowder in a town or other populous 
 place without the resort to highly precautionary measures, so as 
 to make it unsafe to reside in the vicinity of such business;' or 
 the explosion of nitroglycerin in a gas well within a city so near 
 the residence of the plaintiff as to endanger life and property." 
 
 An illustration of the last sort of private nuisances is the use 
 of one's own premises in a wanton and malicious maimer, for the 
 mere purpose of annoying a neighbor, and to destroy the peace 
 and quiet of the neighbor's home, and the use of the premises of 
 the defendant has that effect upon the plaintiff.' 
 
 § 246. Cases wherein injunctions to restrain nuisances 
 have been awarded — 
 
 "Instances of private nuisances, proper to be enjoined, are, 
 where one builds so close to the house of another as to screen his 
 windows; (6) where against a covenant not to do so, one erects 
 a livery stable, a slaughter-house, a glue factory, or other such 
 inconvenience, the obstruction of a water-course; the diversion of 
 streams for mills or other purposes; the back-flowing on mills or 
 lots; pulling down river banks; . . . disturbance of burial 
 grounds; . . . the dangerous digging up of soil; using an 
 adjoining house as a house of prostitution; idamming up a 
 
 ' Wilson V. Phoenix Powder Manf. Co., 40 W. Va. 413; s. c. 21 S. E. Rep. 
 1035; Laflin & R. Powder Co. v. Teamey, 131 111. 322; 7 L. R. A. 262; s. c. 
 21 N. E. Rep. 516. 
 
 " Medford v. Levy, 31 W. Va. 649; s. c. 8 S. E. Rep. 302; s. c. 2 I,. R. A. 
 368; Snyder v. Cabell, 29 W. Va. 48; s. c. i S. E. Rep. 241; Western Union 
 Tel. Co. V. Hewett (D. C), 2 Cent. 695. 
 
 3 Iliff V. School Directors, supra. * Dwight v. Hayes, supra. 
 
 " Wier's Appeal, 74 Pa. St. 230. 
 • ' People's Gas Co. v. Tyner, 131 Ind. 277, 16 L. R. A. 443. 
 
 7 Medford v. Levy, 31 W. Va, 649; s. c. 8 S. E. Rep. 302. 
 
INJUNCTIONS. 359 
 
 sluggish stream so as to make it injurious to health; the dis- 
 turbance of another's rest; acting under color of a statute but in 
 -violation thereof; burning bricks on one's own ground (a); leav- 
 ing open sewers; creating a dense smoke and cinders; causing 
 smoke and eJBEluvia to issue from a factory chimney, and the 
 creation of noise thereby; the creation of smoke when not ac- 
 companied with noise or noxious vapors; keeping a livery stable 
 too near a residence; keeping a hog-pen; the manufacture of gas 
 too near a dwelling; jarring a house by the use of steam ma- 
 chinery, and such like things, many of which are right and law- 
 ful in themselves, but by inappropriateness of time and place may 
 become either public or private nuisances."^ 
 
 ' 'To entitle a party to an injunction he must show that the an- 
 noyance or inconvenience is such as to materially interfere with 
 the ordinary comforts of human existence; or in reference to 
 property that the injury arising from the matter complained of is 
 such as visibly to diminish the value of the property, and the 
 comfort and enjoyment of it. He who seeks the relief must show 
 due diligence in the assertion of his rights, for when the com- 
 plainant has been guilty of great laches, or has allowed the de- 
 fendant for a long period to continue in the erection of his 
 obnoxious structure at great expense and without molestation, 
 equity will not interfere."^ 
 
 ' I Bart., Ch. Prac. §§ 438-440. 
 
 ' I Bart., Ch. Prac. 440. For a valuable note as to nuisances from noises 
 and vibrations, see the case of Quinn v. Lowell Electric Light Co. , 3 N. E. 
 Rep. 202, 204. 
 
 {a) Brick-making being a useful and necessary business, and necessarily 
 exercised near towns, the burning of bricks, an essential part of the business, 
 is not a nuisance />er se. Huckenstine's Appeal, 70 Pa. St. 102. 
 
 (b) The English common-law doctrine of ancient lights does not obtain in 
 West Virginia, and an injunction will not lie for the obstruction of such 
 an easement. Powell v. Sims, 5 W. Va. i. 
 
 "Where the prosecution of a business, of itself lawful, in the neighbor- 
 hood of a dwelling-house, renders the enjoyment of it materially uncomfort- 
 able by noises alone, the carrying on of such business, while it produces 
 such result, will be restrained by a court of equity. Snyder v. Cabell, 29 W. 
 Va. 48; s. c. I S. E. Rep. 241." 
 
 "A skating-rink erected within a short distance from a dwelling-house, 
 and the noise from the skating and attending it was of such a character as to 
 materially interfere with the comfort and enjoyment of the inmates of such 
 dwellings, was properly enjoined by a court of equity." Idem. 
 
 "The noise of a factory, which materially interferes with and impairs the 
 
36o EQUITY PRINCIPLES. 
 
 § 247. Injunction to enjoin sales under executions — 
 
 The well-settled principle underlying the jurisdiction in equity 
 to restrain the sale of property by injunction, which has been 
 levied upon by execution, is the lack of a complete and adequate 
 remedy at law,' or where such sale would result in irreparable 
 injury.' 
 
 Therefore, when personal property is taken in execution, and 
 a third person applies to a court of equity to enjoin a sale on the 
 ground of a prior incumbrance, the court has no jurisdiction in 
 such a case, the rule being that a court of equity cannot inter- 
 fere, when the plaintiff claims as an incumbrancer merely; nor 
 as owner only where his legal remedy is incomplete.' So, too, 
 where a judgment has been paid, and an execution issued thereon, 
 equity will not interfere, but will remit the party to his remedy- 
 at law by motion to quash.* Nor can a trustee or cestui que trust 
 go into a court of equity to enjoin a sale of trust effects under an 
 execution issued and levied by virtue of a subsequently acquired 
 judgment, the remedy at law being, in such a case, adequate and 
 complete.^ Neither will an injunction be granted to restrain the 
 
 ordinary physical comfort of human existence, maybe treated as a nuisance. 
 But the standard as to the effect must be the man of normal nervous sensi- 
 bility and ordinary mode of living. 
 
 "But such cases depend in a peculiar degree upon their own facts and sur- 
 rounding circumstances; so that courts of equity should proceed with great 
 caution in abating or restraining such factory by injunction, and not enjoin 
 unless the fact of nuisance is made in some way to appear clearly beyond all 
 ground of fair questioning." Powell v. Bentley and Gerwig Furniture Co., 
 34 W. Va. 804; s. c. 12 S. E. Rep. 1085. 
 
 "Under section 18 of chapter 32 of the Code, a court of equity cannot re- 
 strain by injunction a party charged with selling intoxicating liquors con- 
 trary to law, or abate the house, building or place where such intoxicating 
 liquors are alleged to be sold contrary to law, until the owner or keeper of 
 such house or place has been convicted of such unlawful selling at the 
 place named in the bill." Hartley v. Henrietta et al., 35 W. Va. 222; s. c. 
 13 S. E. Rep. 375. 
 
 » Kuhn, Netter & Co. v. Mack & Bros., 4 W. Va. 186; Baker v. Rinehard, 
 II W. Va. 238; Walker v. Hunt, 2 W. Va. 491; Hall & Patton v. Taylor, 18 
 W. Va. 544; Rollins v. Hess, 27 W. Va. 570; Howell v. Thompson, 34 W. Va. 
 794; s. c. 12 S. E. Rep. 1088. 
 
 = Dunn v. Baxter, 30 W. Va. 672; s. c. 5 S. E. Rep. 214. 
 
 3 Rollins v. Hess, supra. 
 
 « Hall & Patton v. Taylor, 18 W. Va. 544; Howell v. Thompson, supra. 
 
 s Kuhn, Netter & Co. v. Mack & Bros., 4 W. Va. 186. 
 
INJUNCTIONS. 361 
 
 sale of real estate under an execution, as such sale can in nowise 
 injure or affect the title of the owner thereof.^ 
 
 "It has been held that an injunction could be properly granted 
 where a sale under an execution would involve loss of trade, or 
 restriction of credit, and failure of business prospects, which' 
 could not be compensated at law; and the same was held where 
 the case presented several complicated questions of law and fact, 
 as the genuineness of the judgment creditor's receipt and discharge; 
 its effect at law, and the fairness of the transaction; the effect of 
 an agent's indorsement, involving the question of whether his 
 agency was not destroyed by the presence and acting of the 
 principal, and the equity of the agent's pretensions in law and 
 fact.2" 
 
 § 248. Injunctions enjoining trust sales — 
 
 Frequent resort is made to courts of equity to enjoin the sale 
 of property under deeds of trust.' The ground of equitable in- 
 terference in this class of cases rests mainly upon the lack of 
 remedy outside of equity, and because of the peculiar adaptation 
 of a court of equity to afford the proper degree of relief in such 
 cases.* 
 
 § 249, Povrer of trustee under the deed of trust. 
 
 The trustee in the matter of making sale of the trust subject 
 should in all respects pursue the terms and stipulations of the in- 
 strument or deed of trust; as, where it provides that the sale shall 
 be at public auction, it cannot be made at private sale, although 
 conducive to the interest of the grantor.^ It is equally necessary 
 that the advertisement of the sale should be as provided by the 
 deed; and where the sale was made under two deeds of trust, one 
 of which required an advertisement for fifteen days, it was held 
 that the notice should be given at the longest time, especially if 
 the deed requiring the longest time was the first one executed.^ 
 The trustee should also see that the notice of twenty days prior 
 
 ■ Dunn V. Baxter, 30 W. Va. 672; s. c. 5 S. E. Rep. 214. 
 ' I Bart., Ch. Pr. 443. See, also, opinion of Green, J., in Baker v. Rinehard, 
 II W. Va. 245-248. 
 3 I Bart., Ch. Pr. 445. * Idem. See post, U 249t 250, 478-480. 
 
 5 Gibson v. Jones, 5 Leigh, 445; Hogan v. Duke, 20 Gratt. 257, 1 Bart., Ch. 
 
 Pr. 445- 
 ^ I Bart., Ch. Pr. 446. 
 
362 EQUITY PRINCIPLES. 
 
 to the sale be served on the grantor, if he be a resident in the 
 county at the time. ^ 
 
 The trustee should sell no more of the property than may be 
 necessary to pay the debt and costs of sale, unless demanded by 
 the owner's interest or he request it, or unless the trust property 
 be practically indivisible.' But, though this is the duty of the 
 trustee in the matter of making sale of the property under the 
 trust deed, yet a sale thereunder will not be enjoined because the 
 trustee has advertised to sell all of the property covered by the 
 trust, consisting of several lots, while the law authorizes the sale 
 of only so much as is necessary to satisfy the debt secured, 
 the presumption being that in making the sale the law will be 
 followed.' 
 
 It is also necessary that the trustee shall have the legal title, 
 and that the same shall be free from cloud or doubt, before he 
 proceeds tq make sale of the property under the trust deed.* 
 
 It is also the duty of a trustee before he sells to adjust ac- 
 counts, if necessary, in order to ascertain the actual debt, as if 
 there is any doubt as to the amount of the debt due, the sale may 
 be enjoined; ^ and where there are various incumbrances on prop- 
 erty, and the priorities have not been ascertained, a sale by a 
 trustee under one of the deeds is improper.* 
 
 An examination of the authorities will show that where the 
 trustee has exceeded his powers or ignored his duties, that equity 
 will lend its aid to correct the injury so occasioned.' 
 
 And when a suit by a judgment creditor has been brought 
 to enforce his hen on land, and that of other lienors, and the 
 creditor and trustee under a deed of trust have been made formal 
 parties thereto, there can be no sale made by the trustee under 
 such deed of trust, pending this suit." The rule applying in a 
 case of this sort is, that when a person is made a party to a suit 
 
 • Walker v. Boggess, 41 W. Va. 588; s. c. 23 S. E. Rep. 550. 
 ' Curry v. Hill, 18 W. Va. 370; i Bart., Ch. Pr. 446, 447. 
 
 3 Moore v. Barksdale, 00 Va. 000, 25 S. E. Rep. 529. 
 
 < Miller v. Argyle, 5 Leigh, 460; Ralston v. Miller, 3 [Rand. 44; Lovell v.' 
 Chilton, 2 W. Va. 410. 
 
 5 Curry v. Hill, 18 W. Va. 370. 
 
 " I Bart., Ch. Pr. 447; Richardson v. Donahue, 16 W. Va. 687; Curry v. 
 Hill, supra. 
 
 ' See further, as to subject-matter of this section, post, \\ 478-480. 
 
 * Parsons v. Snider, 42 W. Va. 517, 26 S. E. Rep. 285, 
 
INJUNCTIONS. 363 
 
 as to his rights involved therein, he must await the action of the 
 court, and cannot, by independent proceedings outside of the 
 suit, defeat the real purpose of such suit.^ And there can be no 
 sale, even though notice of sale has been given before such suit 
 has been brought. '^ 
 
 § 250. Specific cases illustrating the use of injunctions to 
 prevent sales of property under trust deeds — 
 
 We here give some specii5c instances wherein resort may be 
 had to an injunction to prevent the sale of property under a deed 
 of trust : Where a trustee as such claims a growing crop of 
 wheat, which in his absence another trustee as such takes posses- 
 sion of and commences cutting, the cestui que trust in the first 
 deed of trust may enjoin him from selling the wheat which he 
 has cut, and may have a receiver appointed and ask other 
 appropriate relief in a court of equity;' where the trustee is 
 proceeding to sell without ascertaining the actual debt for which 
 the property is to be sold, he will be enjoined; * where a deed of 
 trust has been given for purchase-money due on a tract of land, 
 and there are prior judgment liens on the same property and the 
 grantor in the trust deed had bought the property with covenants 
 of general warranty, the sale will be enjoined until the payment 
 and extinguishment of such liens ; ' where sale is about to be 
 made under a deed of trust given to secure the payment of pur- 
 chase-money, and the title of the vendor to the grantor in the 
 trust deed is defective, the sale will be enjoined until such defect 
 can be removed or remedied.' 
 
 A gross sacrifice of the property covered by the trust deed at 
 public sale, when it is made under improper or unfair circum- 
 stances, will often justify the issuance of an injunction; ^ but an 
 injunction will not be awarded to a sale on the ground that the 
 property is about to be sold for cash at a time when in conse- 
 quence of the general prevalent depression and extreme scarcity 
 of money, and the season of the year, and inclemency of the 
 weather at the time of the proposed sale, that it would result in 
 great pecuniary loss and sacrifice." Nor will an injunction be 
 
 ' Idem. ' Idem. ^ Kerr v. Hill, 27 W. Va. 576. 
 
 ■• Curry v. Hill, 18 W. Va. 370. 
 
 5 Ricliardsoii v. Donahue, 16 W. Va. 685. 
 
 « Lovell V. Chilton, 2 W. Va. 410. 1 i Bart., Ch. Pr. 447. 
 
 » Caperton v. Landcraft, 3 W. Va. 540. 
 
364 EQUITY PRINCIPLES. 
 
 awarded to such sale on the ground that money is scarce, that the 
 large amount of cash required will cause an irreparable loss to 
 the owner of the property.' Neither will an injunction be awarded 
 to a trust sale merely because the debtor claims that he is entitled 
 to a conveyance from the creditor of a parcel of land adjoining 
 that embraced in the deed of trust; * nor to enjoin a sale because 
 the debtor claims a deficiency in the acreage of the tract of land 
 embraced in the trust given to secure the purchase-money due 
 from the grantor in the trust deed, when the sale was not by the 
 acre but in gross; ' or because of a parol contract extending the 
 time of the payment of the trust debt, when such agreement 
 cannot be specifically enforced in a court of equity;* nor will 
 such sale be enjoined under a deed of trust given to secure pay- 
 ment of purchase-money of land by reason of an ineffectual 
 deed in the chain of title, where a deed perfecting the title is 
 given." 
 
 (VII) 
 § 251. Injunctions to restrain the infringement of patents 
 and copyrights — 
 
 The principle, says a recent author, supporting injunctions 
 against the infringement of patents and copyrights is the incom- 
 pleteness of the remedy at law; for if each infringement were to be 
 made a distinct cause of action, the remedy would be worse than 
 the evil. The author or inventor might be ruined by the neces- 
 sity of perpetual litigation without ever being able to have a final 
 establishment of his rights.* 
 
 The federal courts have exclusive jurisdiction of an action to 
 prevent an infringement upon a patent or copyright, or to restrain 
 the violation of a right conferred by authority of the patent laws 
 of the United States. And while the state courts have jurisdic- 
 tion to decide questions as to the title to letters patent, or of an 
 action on a contract, although such an action involves the valid- 
 ity of a patent, they have no authority to restrain a party from 
 using a patent pendente lite, or in any way to pass directly in a 
 
 » I Bart., Ch. Pr. 447. ' Shonk v. Knight, 12 W. Va. 667. 
 
 3 Reed v. Patterson, 7 W. Va. 263. * Craig v. McCuUoch, 20 W. Va. 148. 
 5 Morgan v. Glendy, 92 Va. 86; s. c. 22 S. E. Rep. 854. 
 " 2 Beach, Mod. Eq. Jur., \ 747. 
 
INJUNCTIONS. 365 
 
 suit for that purpose upon a question as to an infringement of 
 the patent or copyright.^ 
 
 § 252. \Vhen preliminary injunction will be granted to 
 restrain the infringement of patents and copy- 
 rights — 
 
 "The court will not," says Mr. Beach, "grant a preliminary 
 injunction unless fully satisfied as to the infringement. If the 
 evidence is so conflicting as to require full proof to determine 
 the question of infringement, a preliminary injunction will not 
 be granted, especially where a prompt final hearing is assured; 
 and such an injunction will not be granted where the^ patentabil- 
 ity of the article is doubtful, or where the validity of the patent 
 is dependent upon an appeal in another suit, especially where a 
 stoppage of defendant's business would cause irreparable injury; 
 or where it appears from the defense that complainant's patent 
 will be very narrowly sustained, if at all. So, where it appeared 
 that no irreparable injury would be suffered by plaintiff if a pre- 
 liminary injunction was refused, but that if enjoined, defendant, 
 a railroad corporation, would be forced to do away with some of 
 the appliances on its road, and thereby increase the risk of pub- 
 lic travel, the injunction was refused. And a preliminary in- 
 junction has been refused on the ground that defendants were 
 amply responsible, and a preliminary injunction would have 
 worked a hardship.'" 
 
 § 253. W^hen previous trial at law necessary before aw^ard- 
 
 ing an injunction to restrain the infringement 
 
 of patents and copyrights — 
 
 Injunctions in patent and copyright cases will not be granted 
 
 without a previous trial at law unless the plaintiff shows a clear 
 
 case of infringement and that his rights are clear.' 
 
 The English rule is that when the answer denies the validity 
 
 ^ Idem; Hotchkiss v. Fitzgerald Patent Prepared Plaster Co., 41 W. Va. 
 357, 23 S. E. Rep. 576. 
 
 ' Idem, \ 748. "A preliminary injunction to restrain the alleged infringe- 
 Inent of a patent shoiild not be granted where the financial ability of the 
 defendant to respond in damages is not successfully attacked, and the proof 
 of complainant's rights and defendant's infringement is not free from 
 doubt." Standard Elevator Co. v. Crane Elevator Co., 6 C. C. A. (U. 
 S.) 100. 
 
 3 2 Beach, Mod. Eq. Jur., I 749. 
 
366 EQUITY PRINCIPLES. 
 
 of the patent, the parties are remitted to an action at law to 
 settle this question; but in the United States, the matter is dis- 
 cretionary with the court. ^ 
 
 If the question of the validity of the patent has been settled 
 in a suit brought for that purpose, the only open question in a 
 subsequent suit, as for an application for an injunction, is that of 
 the infringement of the patent.' 
 
 The only exception to this rule is where new evidence is 
 offered as to the validity of the patent, which was not used on 
 the former trial, and it is of such a conclusive character that if 
 it had been introduced in the former case it would probably have 
 led to a different result.' 
 
 § 254. \Vhere the patent has expired and the infringe- 
 ment has ceased — 
 
 "If a bill is not filed until after the expiration of the patent, it 
 will not be sustained as an injunction bill; and in the absence of 
 special circumstances equity will not entertain a bill for infringe- 
 ment of letters patent which expired between date of service and 
 return day. But if the patent was in force at the time of the 
 commencement of the suit, and complainant was entitled to a 
 preliminary injunction at that time, the jurisdiction of the court 
 is not defeated by the expiration of the patent by lapse of time 
 before final decree. The fact that the infringement has ceased 
 since the commencement of suit prevents the issuing of a pre- 
 liminary injunction." * 
 
 ' 'There is no difference in the rule in cases arising under pat- 
 ent and copyright laws and other equitable proceedings with re- 
 spect to the consideration of applications for injunction." ' 
 
 • 2 Beach, Mod. Eq. Jur., § 749. 
 
 ' Philadelphia Trust, S. D. & Ins. Co. v. Edison Electric X,. Co., 13 C. C. 
 A. (U. S.) 40- 
 
 3 Philadelphia Trust, S. D. & Ins. Co. v. Edison Electric 1,. Co., supra. 
 
 < 2 Beach, Mod. Eq. Jur., ? '751. 
 
 Patents which have expired can afford no basis for equitable relief in re- 
 spect to infringement; and, in refepect to a patent which expires just after 
 filing of the bill, and before the return of the subpena, it is within the dis- 
 cretion of the court to dismiss the bill for want of equity. Russul v. Kern, 
 C. C. A. Rep., vol. 16, p. 154. s 2 Beach, Mod. Eq. Jur., §753. 
 
INJUNCTIONS. 367 
 
 (VIII) 
 
 § 255. Injunctions in cases of municipal corporations — 
 
 The principle upon which the action of municipal bodies will be 
 arrested by injunction is that they are exceeding the power and 
 authority with which they are by law invested.' 
 
 ' 'A municipal corporation possesses and can exercise the fol- 
 lowing powers and no others: isi, those granted in express words 
 by its charter or the general statutes under which it is incorpo- 
 rated; 2d, those necessarily or fairly implied in or incident to the 
 powers thus expressly granted; and 3^, those essential to the de- 
 clared purposes of the corporation — ^not simply convenient but 
 indispensable."^ 
 
 With the weU-recognized powers of a municipality, or in the 
 exercise of its discretionary powers, a court of equity has nothing 
 to do.' Thus, the municipal authorities will not be enjoined 
 from cutting down shade trees standing within the line of a side- 
 walk ordered to be constructed, where they would constitute 
 permanent obstructions if left standing.* Nor will the mayor and 
 council of a dty i>e enjoined from taking charge of a case in- 
 volving a question of the misconduct of one of the city oflScers 
 with a view to his removal and dismissal from office. ° 
 
 § 256. Enjoining municipal ordinances — 
 
 As a general rule a corporation ordinance cannot be enjoined;* 
 but notwithstanding this general rule, a court of equity has 
 jurisdiction to restrain the enforcement of an invalid ordinance, 
 the execution of which injuriously affects private rights.^ But 
 whatever is within the police power of a city or town, and ordi- 
 
 ■ Western Union Tel. Co. v. Mayor of New York, 38 Fed. Rep. 552; s. c. 
 3 L. R. A. 449; Gaines v. Thompson, 74 tJ. S. (7 Wall.) 347; Mt. Carmel v. 
 Shaw, 155 ni. 37; s. c. 27 L. R. A. 581; Christie v. Maiden, 23 W. Va. 667. 
 
 ' Christie v. Maiden, 23 W. Va. 667; Lynchburg & R. St. Ry. Co. v. Dam- 
 eron, 95 Va. 545, 28 S. E. Rep. 951. 
 
 3 Mt. Carmel v. Shaw, su/>ra. 
 
 * Mt. Carmel v. Shaw, supra; Chase v. Oshkosh, 81 Wis. 313; s. c. 15 L. 
 R- A. 553, and note; Tate v. Greensboro, 114 N. C. 392; s. c. 24 L. R. A. 671. 
 But see Avis v. Vineland, 55 N. J. L. 474; s. c. 23 L. R. A. 685. 
 
 5 Muhler v. Hedekin, 119 Ind. 481; s. c. 20 N. E. Rep. 700. 
 
 « Scott V. Smith, 121 N. C. 94, 28 S. E. Rep. 64. 
 
 7 Deems V. Baltimore, 80 Md. 164; s. c. 26 L. R. A. 541; Austin v. Austin 
 City Cemetery Ass'n, 87 Tex. 330, 28 S. W. Rep. 528; Cicero Lumber Co. v. 
 Cicero, 176 111. 9, 42 L. R. A. 696. 
 
368 Equity principi<bs. 
 
 nances liave been passed witli reference to such matter, is beyond 
 the jurisdiction of the court to disturb. As where an ordinance 
 has been passed providing for the destruction of milk which has 
 been duly found below the prescribed standard of such article of 
 food, its enforcement cannot be enjoined.^ But an ordinance will 
 not be enjoined unless all parts of it are void.' 
 
 § 257. Injunctions to prevent the creation of illegal in- 
 debtedness by municipal and other public corpo- 
 rations — 
 
 A very common ground upon which courts of equity are called 
 to exercise their power to award injunctions to the action of 
 cities and towns, is that wherein attempt is made to create a debt 
 or obligation not authorized by law.^ 
 
 Thus a city, indebted up to the limit fixed by the constitution, 
 cannot carry on its operations upon credit, within the meaning of 
 credit in the constitution, in any manner, or for any purpose, but 
 must pay during the current year with funds in hand, or with 
 funds already legally levied; and any attempt to do so will be 
 enjoined at the instance of any tax-paying resident or voter of 
 such city, suing on behalf of himself and all other taxpayers of 
 such city.* 
 
 The courts, according to a reputable author, will also "enjoin 
 a city assessment made without authority of law, even where no 
 question as to a cloud upon the title. has been raised; to prevent 
 an unauthorized or unconstitutional subscription to the stock of a 
 railroad company; to prevent a sale for taxes when the city has 
 not complied with the requirements of a statute; to prevent the 
 unauthorized appropriation of the funds of a city, as for the cele- 
 bration of the fourth of July; to prevent the issuing of bonds for 
 
 • Deems v. Baltimore, supra. The question -whether or not milk which is 
 daily offered for sale in every part of a large city comes up to the prescribed 
 standard, for the purpose of confiscating and destroying that which is con- 
 demned, may be determined otherwise than by ordinary process of judicial 
 investigation or by chemical analysis without violating the constitutional 
 provision as to due process of law. Idem. 
 
 ' Davis V. Pasig, 128 Ind. 271; s. c. 27 N. E. Rep. 726. 
 
 3 Spillman v. City of Parkersburg, 35 W. Va. 605; s. c. 14 S. E. Rep. 279; 
 Maudlin v. Greenville, 33 S. C. 1; s. c. 8 L. R. A. 291; s. c. 11 S. E. Rep. 
 434; Black V. Ross, 37 Mo. App. 250; Lynchburg & R. St. Ry. Co. v. Dam- 
 eron, 95 Va. 545, 28 S. E. Rep. 951. 
 
 « Spillman v. City of Parkersburg, supra. 
 
INJUNCTIONS. 369 
 
 a purpose unauthorized by law."^ But a court of equity will not 
 enjoin tlie collection of a tax assessment on a town lot to pay for 
 the construction of a sidewalk in front of the same, ordained by 
 the common council of an incorporated city or town, or the act of 
 making the assessment itself, on the sole ground that such tax or 
 assessment is illegal;^ some additional fact or circumstance bring- 
 ing the case under some recognized head of equity jurisdiction, 
 must be shown. ^ 
 
 Upon the principles here discussed, a court of equity has ju- 
 risdiction of a suit by and on behalf of the resident taxpayers of 
 a school district, to set aside a contract made by and with the 
 board of education, when the same is illegal, as made in fraud 
 of the rights of such taxpayers, and so far as the same creates a 
 debt to be paid out of the school money of any subsequent year, 
 or is made for the purchase of things which the school board had 
 no authority to buy, and the action of the board in this regard 
 will be enjoined.^ 
 
 § 258. 'When a municipality may resort to the use of in- 
 junction as a remedial process — 
 
 'A municipal corporation may itself resort to equity when an 
 adjudication is necessary to enable it to perform its public 
 duties. ' ' ' Thus, a city government may restrain or remove by 
 injunction the perpetuation or continuance of a permanent ob- 
 struction in its public streets;* a railroad company from deposit- 
 ing dirt, cinders and other material upon a street or streets 
 within the city limits;' a riparian lot owner on the Ohio river 
 from attempting to erect a wharf on his lot within the coporate 
 limits between ordinary low water mark and high water mark 
 
 ' I Bart., Ch. Prac. 449, 450. See further on the subject of this section, 
 post, ? 263. 
 
 ' "Wilson V. Town of Philippi, 39 W. Va. 75, 19 S. E. Rep. 553; Riddle v. 
 Town of Charlestown, 43 W. Va. 796, 28 S. E. Rep. 831. 
 
 3 Idem. Examine the cases cited, and especially, Wilson v. Town of 
 PhUipi, supra. 
 
 * Honaker v. Board of Education, 42 W. Va. 170, 24 S. E. Rep. 544. 
 
 5 2 Beach, Mod. Eq. Jur., ? 683. 
 
 « Reed v. Birmingham, 92 Ala. 339, 33 Am. & Eng. Corp. Cas. 469; s. c. 
 9 So. Rep. 161; City of Moundsville v. O. R. R. Co., 37 W. Va. 92, 16 S. E. 
 
 Rep. 514- 
 
 7 Chicago, B. & Q. R. Co. v. Quincy, 139 111. 355; s- c. 28 N. E. Rep. 1069. 
 
 24 
 
370 EQUITY PRINCIPI,BS. 
 
 without the consent of the town authorities;^ the erection of tele- 
 phone poles in a street without the consent of the municipal au- 
 thorities.^ 
 
 (IX) 
 § 259. Injunctions in cases of sureties — 
 
 Where the defense of a surety can be made at law, he can have 
 no ground for going into a court of equity.' But all defenses 
 which arise from estoppels or estoppels in pais, relating to the 
 rights of sureties, must be made in a court of equity in our 
 state.* 
 
 Where there has been a definite extension of time by the cred- 
 itor to the principal obligor in a bond upon a sufficient considera- 
 tion without the knowledge or consent of the surety, as hereafter 
 more fully shown,^ this will operate to discharge the surety on 
 the bond, but such defense is only available in equity." If 
 judgment is sought to be enforced, obtained after such extension 
 -af time, against the surety, the court will perpetually enjoin the 
 enforcement thereof against him.' 
 
 When the contract of suretyship is a simple one, such ex ten- 
 sion of time would constitute a good defense at law.* 
 
 A surety cannot come into equity to enjoin the enforcement 
 of a judgment against the obtainment of which he might have 
 defended at law, although the principal had a good defense of 
 which the surety was ignorant, where he could have taken proper 
 measures to ascertain the true state of the case and have prepared 
 his defense.' 
 
 § 260. W^hen equity ^vill indemnify the surety against the 
 action of the principal — 
 
 An insolvent principal cannot, according to the principles gov- 
 erning courts of equity, collect a debt owing to him from his 
 surety without first indemnifying siich surety.'" 
 
 » Ravenswood v. Fleming, 22 W. Va. 52. 
 
 • Marshfield v. Wis. Tel. Co. (Wis.), 44 L. R. A. 565 and note. 
 
 3 I Bart., Ch. Pr. 455. 
 
 < Poling V. Maddox, 41 W. Va. 779; s. c. 24 S. E. Rep. 999. | 
 
 s See post, H 393, 394. • i 
 
 ' Glenn v. Morgan, 23 W. Va. 467. ' Idem. i 
 
 ^ Glenn v. Morgan, supra, and especially at pages 470, 471. 
 
 9 Smith V. McClain, 11 W. Va. 654. 
 
 '" Mattingly v. Sutton, 19 W. Va. 19. Post, \ 391. 
 
INJUNCTIONS. 371 
 
 Generally, a surety in a court of equity has in respect to his 
 liability the rights of a creditor; and upon the insolvency of the 
 principal debtor, he may retain any fvmds belonging to the 
 debtor by way of indemnity against his liability.* 
 
 Hence, if the insolvent principal has a judgment against the 
 surety and undertake to enforce its collection, equity will award 
 an injunction to restrain the collection of such judgment at the 
 instance of the surety, though the surety has not paid the debt for 
 which he is surety, and it would be error to dissolve the injunc- 
 tion, unless it be made to appear that the principal had dis- 
 charged and satisfied the liability of the surety or procured the 
 release or discharge of his surety from liability in any event as 
 to the debt for which he stood as surety.' 
 
 (X) 
 § 261. Injunctions in cases of partners — 
 
 "Courts of equity," says an able author,^ "will entertain ju- 
 risdiction to prevent by injunction members of a copartnership 
 from the commission of acts inconsistent with the terms of their 
 agreement, and from violating the rights of their copartners. 
 The jurisdiction is founded upon well-established principles of 
 equity, and is exercised irrespective of whether a dissolution of 
 the partnership is sought. Thus, where several partners are en- 
 gaged in trade, one of their number may be enjoined from using 
 force to the obstruction or interruption of the trade, and from 
 removing or displacing servants employed by the other partners, 
 and from removing the books and papers relating to the business. 
 And, where one of the members of a firm has been temporarily 
 insane, and on his recovery his copartners exclude him from the 
 management of the firm business, an injunction will be allowed 
 to restrain them from thus excluding him from the business. So, 
 where a partnership is formed for a term of years, to be termi- 
 nated on notice by either party for a given length of time, an in- 
 junction will be granted from preventing one partner from ob- 
 structing the other from the enjoyment of his partnership 
 rights, and from any improper use of the partnership funds or 
 effects." 
 
 • Idem. ' Idem. ' High on Inj., § Sw. 
 
372 EQUITY PRINCIPLES. 
 
 § 262. Cases wherein injunctions will or will not be al- 
 lowed by or against partners — 
 A member of one firm may be enjoined from withdrawing from 
 it and entering into a new partnership before the expiration of 
 the period for which the firm had organized;^ so, where one of 
 the proprietors of a theater, in violation of partnership articles, 
 engages in writing plays for another theater, an injunction will 
 be awarded;* and the exclusion of one partner from the premises 
 where the business is being conducted, and preventing him from 
 participating in the business, is good ground for restraining the 
 other partner from receiving and collecting debts due the firm;' 
 in a suit brought for the dissolution of the firm, a member may 
 be restrained, upon a proper showing, from an unlawful interfer- 
 ence with the business, or from committing any damage to the 
 property of the firm;* and agreements by one or more retiring 
 members, on the dissolution of a firm, not to carry on the firm 
 business, may be enforced in equity by enjoining any attempt at 
 their violation/ But a mere temptation to dishonesty and to the 
 abuse or improper use of partnership property will not, of itself, 
 induce a court of equity to award an injunction;* and, where 
 partnership property has been levied on for the debt of an indi- 
 vidual member of the firm, being only the share of such member 
 therein, an injunction will not lie to the sale until the partner- 
 ship accounts have been liquidated.' 
 
 (XI) 
 § 263. Injunctions to restrain the collection of illegal 
 taxes — 
 
 It is well settled by repeated adjudications that equity will en- 
 join, in a proper case, the attempted enforcement of an illegal 
 tax; and it is immaterial whence the illegality of the tax arises.* 
 
 ' Idem, \ 813. " Idem, \ 813. 3 Idem, I 817. <■ Idem, I 816. 
 
 s Idem, I 818. « Idem, \ 811. ? Idem, § 814. 
 
 » Xuhn V. Board of Education, 4 W. Va. 449; McClung v. Livesay, 7 "W. 
 Va. 329; Ivcwis V. Spencer, 7 W. Va. 689; Douglass & McKinney v. Town of 
 Harrisvaie, 9 W. Va. 162; C. & O. R. Co. v. Miller, Auditor, 19 W. Va. 408- 
 ■Williams v. County Court, 26 W. Va. 488; Powell v. Parkersburg, 28 W. Va. ■ 
 698; Crim V. Town of Philippi, 38 W. Va. 122; s. c. 18 S. E. Rep. 466; Ty- 
 gart's Valley Bank v. Town of Philippi, 38 W. Va. 219; s. c. 18 S. E. Rep. 
 489; Caruthers v. Board of Education, 16 W. Va. 527; City of Richmond v. 
 Crenshaw, 75 Va. 926. 
 
INJUNCTIONS. 373 
 
 But an injunction will not lie to the collection of such a tax on 
 the sole ground that the tax is illegal} There must exist, in ad- 
 dition, special circumstances bringing the case under some recog- 
 nized head of equity jurisdiction, such as that the enforcement 
 of the tax would lead to a multiplicity of suits, or produce irrep- 
 arable injury, or, where the property is real estate, throw a 
 cloud upon the title of the complainant and the like;^ or, that 
 the corporation levying the tax is acting ultra vires by taxing 
 property not subject to taxation, or by taxing property which it 
 may tax beyond the limit fixed by the organic law conferring the 
 power to tax.' 
 
 It will be seen from this enumeration of equitable gfrounds au- 
 thorizing an injimction against an illegal tax, that it is quite 
 difficult to conceive of an unwarranted tax that may not fall un- 
 der some one of these equitable heads. As for illustration: if 
 taxes are illegally assessed upon real estate, they create a cloud 
 upon the title thereof, and for this cause alone equity will take 
 jurisdiction;* if the tax is the result of a general assessment, and 
 thus affecting many persons, equity will take cognizance of the 
 case in order to avoid a, multiplicity of suits.* 
 
 But, if more than one person is thus affected by the illegal 
 tax, the suit must be brought on behalf of the plaintiff and all 
 other taxpayers affected by such tax.* This averment is abso- 
 lutely essential to give a court of equity jurisdiction on the 
 ground of avoiding a multiplicity of suits. ^ 
 
 If taxes are assessed by a municipality of less population than 
 ten thousand inhabitants, upon a valuation of the property 
 therein at a greater rate than the valuation for state, county and 
 district purposes, such municipality will be enjoined from the 
 
 ' Williams v. County Court, supra; Douglass & McKinney v. Town of 
 Harrisville, supra; Christie v. Maiden, 23 W. Va. 667; Caruthers v. Board 
 of Education, 16 W. Va. 527. 
 
 ' Douglass & McKinney v. Town of Harrisville, supra; Powell v. City of 
 Parkersburg, supra. 
 
 3 Christie v. Maiden, supra. 
 
 « Powell V. City of Parkersburg, supra; Tygart's Valley Bank v. Philippi, 
 supra. 
 
 5 Caruthers v. Board of Education, supra, at pp. 540, 541. 
 
 ' Caruthers v. Board of Education, supra; McClung v. I/ivesay, supra; 
 Williams v. County Court, supra. 
 
 ' Williams v. County Court, supra. 
 
374 BQTJITY PRINCIPLES. 
 
 collection of such taxes, because in such case the corporation has 
 exceeded its power, or has acted ultra vires} 
 
 In Christie V. Maiden,* Snyder, J., in considering this question, 
 of illegal taxation by municipalities, says: "In my judgment the 
 proper rule, founded on both reason and the authority., is that 
 whenever the authorities of a municipal corporation make an il- 
 legal or improper assessment of taxes on a person or subject, 
 which they have the legal right and authority to tax properly, 
 the remedy of the party so illegally taxed is confined to a court 
 of law; but where such parties illegally assess and attempt to 
 collect a tax from a person or a subject which they have no legal 
 right to tax, or levy an improper tax for which a court of law 
 could not afford an adequate remedy, because redress in that court 
 could only be had by repeated actions, then a court of equity will 
 take jurisdiction and enjoin the assessment and collection of such 
 tax. That is, if the municipal authorities erroneously tax prop- 
 erty, which they have the legal right and power to tax, the 
 remedy must be sought at law; but if they tax property not 
 legally taxable, or if they exceed the limit prescribed by statute 
 conferring their power to tax, their action being ultra vires and 
 void, equity has jurisdiction." 
 
 (XII) 
 § 264. Injunctions to restrain the taking of private prop- 
 erty for public use — 
 
 If the land of any person be taken by a railroad company or 
 other corporation for public use without the owner having first 
 been paid, or secured to be paid in the manner provided by law, 
 a just compensation for his property, the owner of such land 
 may enjoin the corporation from using such land until it has 
 paid him, or secured to be paid to him, a just compensation for 
 the taking of his land.' 
 
 » Crim V. Town of Philippi, supra; Tygart's Valley Bank v. Town of 
 Philippi, supra. 
 
 ' 23 W. Va. 671. 
 
 3 Spencer v. Railroad Co., 23 W. Va. 406; Mason City S. & M. Co. v. 
 Town of Mason, 23 W. Va. 211; Yates v. Town of West Grafton, 33 W. Va. 
 507; s. c. II S. E. Rep. 8; Forsyth v. City of Wheeling, 19 W. Va. 318; 
 Mason v. Bridge Co., 17 W. Va. 396; Pierpont v. Town of Hanisville, 9 w! 
 Va. 215; City of Wheeling v. Campbell, 12 W. Va. 36; Bridge Co. v. Sum- 
 mers, 13 W. Va. 476; Boughner v. Town of Clarksburg, 15 W. Va. 394. 
 
INJUNCTIONS. 375 
 
 When the land is actually taken for public use, and not merely 
 damaged, an injunction restraining the use of such land by the 
 corporation will be granted as matter of right.^ If, however, 
 the property is not taken, but merely damaged, an injunction will 
 not issue as matter of right, ^ unless under peculiar circumstances, 
 as for instance where the property is entirely destroyed in value 
 as effectually as if it had actually been taken by the company or 
 corporation.' 
 
 § 265. Injunctions against towns as to taking land for 
 streets and sidewalks — 
 
 A very common application of the law of injunctions to pre- 
 vent an illegal or unauthorized invasion of one's domains is where 
 a city or town is attempting to open a street through one's 
 premises, or to lay a sidewalk thereon, without the owner's con- 
 sent, when there has been no dedication of the land to the town 
 or city for street purposes. In every such case an injunction will 
 he at the instance of the owner to restrain the municipality from 
 taking the land for such use, until the land has been condemned 
 or compensation has been paid or secured to be paid to the 
 owner.* 
 
 Where the land sought to be taken has been dedicated to pub- 
 lic use upon condition, the terms of the dedication must be 
 strictly complied with.* But the dedication of land to public use 
 may be by acts and declarations without any deed. But in every 
 such case these acts and declarations must be deliberate, un- 
 equivocal and decided, manifesting a positive and unmistakable 
 intention to permanently abandon the property to public use.* 
 
 ' Spencer v. Railroad Co., supra. 
 
 ' Idem; Ohio R. R. Co. v. Ward, 35 W. Va. 461; s. c. 14 S. E. Rep. 142. 
 
 3 Idem. 
 
 * Pierpont v. Town of Harrisville, supra; Yates v. Town of West Grafton; 
 supra; Boughner v. Town of Clarksburg, supra. 
 
 5 Boughner v. Town of Clarksburg, supra. 
 
 ' Pierpont v. Town of Harrisville, supra. 
 
 "Under section 31 of chapter 43 of the amended Code, which is the same 
 as section 31 of chapter 14 of the acts of 1881, when the owner permits the 
 use of his land as a public road, street, or alley, for a long time, such user 
 will not now be presmned to be a mere license, but a dedication; and the 
 acceptance of the county or city or incorporated town need not be proved 
 by matter of record, but may be presumed from acts of recognition, accept- 
 ance and claim." Yates v. Town of West Grafton, 33 W. Va. 507; s. c. 11 
 S. E. Rep. 8. 
 
376 BQUITY PRINCIPLES. 
 
 § 266. Injunctions against railroad companies for appro- 
 priating land to right of way— 
 
 If a town council has given a railroad company the right to 
 lay its track upon, over, or along a street or highway, as by law 
 such council may do, an abutting property owner cannot, ordi- 
 narily, enjoin the company from the use of the street on the 
 ground of damage to his lot or land bordering on such street.^ 
 
 Our court, in the language of Judge Holt, in Ohio River R. 
 Co. v. Gibbens, holds that it is "a vain and idle thing for any 
 one man to plant himself by injtmction squarely in front of such 
 progress as the construction of a great highway of trade and 
 commerce like that of a railroad." He must seek his remedy by 
 way of damages or other mode of compensation. 
 
 If, however, the laying of the track entirely deprives the adjacent 
 lot owner of access to his property, or otherwise entirely takes away 
 its use or value, then injunction may be resorted to as a mode of 
 relief.'' 
 
 So, also, if the land owner has been merely damaged, and has 
 recovered a judgment therefor in a court of law, and an execu- 
 tion thereon has been returned "no effects," and the said judg- 
 ment remains unsatisfied, the land owner may at once restrain 
 by injunction the company from further damaging his property, 
 by stopping the running of trains until the damages awarded in 
 the common-law suit are paid or secured.^ 
 
 § 267. \Vhen court will award an issue to determine the 
 quantum of damages when land has been taken — 
 When the court can properly award an injunction restraining a 
 corporation or company from taking private property for public 
 use, it will award an issue quantum datnnificatus , to assess the 
 damage to the plaintiff's property, and if either of the parties to 
 the cause requires it, the order awarding such issue shall provide 
 that it shall be tried by an impartial jury of twelve freeholders.* 
 
 ■ Spencer v. Railroad Company, 23 W. Va. 406; Arbentz v. Railroad Co., 
 33 W. Va. 1; s. c. 10 S. E. Rep. 14; Ohio River R. Co. v. Gibbens, 35 W. Va. 
 57; s. c. 12 S. E. Rep. 1093. 
 
 ' Ohio River R. Co. v. Ward, supra; Spencer v. Railroad Co., supra; Yates 
 V. Grafton, supra. 
 
 3 Ohio River R. Co. v. Ward, supra. 
 
 * Mason v. Harper's Ferry Bridge Co., 17 W. Va. 396; Forsyth v. City of 
 
INJUNCTIONS. 377 
 
 But no issue out of chancery should be awarded to assess dam- 
 ages until the plaintiff has made out 2l prima facie case. In other 
 words, he must establish the allegations of his bill by sufficient 
 proof where they are controverted by an answer.^ 
 
 § 268. Injunctions to restrain the enforcement of judg- 
 ments and decrees — 
 
 The principles, as hereinafter 'more fully shown,' upon which a 
 court of equity wiU interpose its aid by injunction to arrest or 
 enjoin the enforcement of a judgment obtained in a court of law, 
 are simple and well defined. A judgment will not be enjoined 
 unless the party had a good defense to the action in which it was 
 rendered, and was prevented from making his defense upon the 
 ground of fraud, accident or surprise, or some adventitious cir- 
 cumstance beyond the control of the party complaining.' 
 
 But if, by reason of the act or conduct of the opposite side, a 
 person has been prevented from defending the action at law, to 
 which he had an adequate defense, as where the plaintiff at law 
 told the defendant that he would take no judgment against him 
 and that he need not employ counsel, equity will lend its aid and 
 enjoin the enforcement of the judgment so obtained.* 
 
 Wheeling, 19 W. Va. 318; Ohio River R. Co. v. Ward, 35 W. Va. 481; s. c. 
 14 S. E. Rep. 142. 
 
 ' Ohio River R. Co. v. Ward, supra. ' Post, \ 351. 
 
 3 Knapp V. Snyder, 15 W. Va. 434; Ferrel v. Allen, 5 W. Va. 43; Harvey 
 V. Seashol, 4 W. Va. 115; Alleman v. Knight & Bro., 19 W. Va. 201; Haines 
 V. Price, 17 W. Va. 523; Black v. Smith, 13 W. Va. 780; Suddington v. 
 Handley, 7 W. Va. 269; Smith v. McLain, 11 W. Va. 654; Shields v. Mc- 
 Clung, 6 W. Va. 69. 
 
 See also, as to injunctions against judgments, on various grounds, the 
 elaborate notes to the cases of Jarrett v. Goodnow, 32 L. R. A. 321-329; 
 Texas Mexican Ry. Co. v. Wright, 31 L. R. A. 200-213; Little Rock & Ft. 
 S. Ry. Co. V. Wells, 30 L. R. A. 560-573; Gum-Elastic Roofing Co. v. Mexico 
 Pub. Co., 30 L. R. A. 700-712; Merriman v. Walton, 30 L. R. A. 786-802; 
 Payton v. McQuown, 31 L,. R. A. 33-40; Michner v. Springfield Engine and 
 Thresher Co., 31 L. R. A. 59-66; Farwell Co. v. Hilbert, 30 L. R. A. 235-242; 
 Griggs V. Docter, 30 L. R. A. 360-363. 
 
 * Knapp V. Snyder, supra. But where a bill shows a case for the interfer- 
 ence of a court of equity, on the ground that the action at law was not de- 
 fended because the plaintifif had promised to take no judgment against the 
 party, and assured him it was unnecessary to employ counsel, and the bill 
 further shows that a plea was put in by counsel, for the defendant, without 
 any allegation that such appearance was unauthorized, the bill is fatally de- 
 fective. See also Moore v. Lipscombe, 82 Va. 546. 
 
378 EQUITY PRINCIPI,ES. 
 
 While after a verdict for the plaintiff in an action sounding in 
 damages, and a refusal of a court of law to grant a new trial, a 
 court of equity ought to proceed with great caution in the matter 
 of interposing its aid,* yet if it appears that at the time the act 
 complained of in the suit at law was committed, and upon which 
 the judgment is founded, and that when the judgment was ren- 
 dered, the complainant in the bill was insane or suffering from 
 mental derangement, such judgment should be perpetually en- 
 joined.'' 
 
 Equity will not interfere on account of error or mistake in the 
 judgment of the court of law, nor for mere irregularities or in- 
 formalities in the proceedings in which the judgment was ren- 
 dered.' 
 
 "The person applying must set forth specifically the grounds 
 conferring equitable jurisdiction; and it is not sufficient to aver 
 in general terms that he had a good defense, or that the judg- 
 ment was obtained by fraud, or is otherwise oppressive and in- 
 equitable. ' ' * 
 
 It is settled that equity will not enjoin a void judgment, as 
 there is a plain and adequate remedy at law.' 
 
 § 269. Injunction to judgments because of after-discov- 
 ered evidence — 
 The rule in cases of injunctions to judgments on the ground of 
 newly or after discovered evidence is, that the evidence must be 
 material and such as ought, to change the result of the trial, had 
 such evidence been before the court in which the action at law 
 was tried,' and "not merely cumulative as to matter which was 
 controverted on the law trial or going to the impeachment of the 
 testimony of a witness;" ^ and that such evidence could not be 
 discovered by the exercise of ordinary diligence, or that the use 
 of the same was prevented by fraud or accident or the act of the 
 opposite party unmixed with laches or negligence on the part of 
 
 ' Meridith v. Johns, i Hen. & Munf. 585. 
 = Homer v. Marshall's Adm'x, 5 Munf. 466. 
 3 Horner v. Price, supra; 2 Beach, Mod. Eq. Jur., § 658. 
 < 2 Beach, Mod. Eq. Jur., ? 658. 
 
 5 Kanawha & O. R. Co. v. Ryan, 31 W. Va. 364; s. c. 6 S. E. Rep. 924. 
 See^oj/, I 351. 
 « Bloss V. Hull, 27 W. Va. 503; 2 Beach, Mod. Eq. Jur., I 658. 
 ' Bloss V. Hull, supra. Seeposi, § 353. 
 
INJUNCTIONS. 379 
 
 the complainant in the injunction bill.' So where the bill for an 
 injunction to a judgment shows matter sufficient to have de- 
 feated a recovery at law, but which was not available as a de- 
 fense because not discovered until after judgment and until it 
 was too late to move for a new trial, and a sufficient reason is 
 shown why such matter of defense was not discovered in time to 
 be set up in the action at law, an injunction will be awarded.' 
 
 § 270. Injunctions to judgments in cases wherein no ap- 
 peal can be taken — 
 
 There are many cases which lay down the doctrine that where 
 an appeal from the judgment complained of has been prevented, 
 by reason of ciecumstances and occurrences over which the 
 plaintiff in the suit had no control, an injunction to the judgment 
 will be awarded.' 
 
 Thus an injunction against a judgment will be granted when 
 the death of the trial judge soon after the trial prevented the per- 
 fection of an appeal, and the record shows that the judgment 
 is without evidence to support it.* 
 
 But a recent author says that where a judgment is made final 
 by statute, and no appeal is allowed therefrom, an injunction will 
 not be gfranted to restrain its enforcement, as that would be prac- 
 tically affording relief denied by the statute.* 
 
 § 271. Cases illustrating the use of injunctions enjoining 
 judgments — 
 
 Equity will enjoin the collection of a judgment in favor of an 
 insolvent plaintiff, who is a judgment debtor to the defendant to 
 the extent of such indebtedness.* 
 
 Where a judgment has been rendered against a sheriff and his 
 sureties and such sureties not having any knowledge of any defense 
 to the action in which the judgment was rendered, and it after- 
 
 ' Bloss V. Hull, supra; Ludington v. Handley, supra. See 11 W. Va. 665. 
 
 ' Ferrell v. Allen, 5 W. Va. 43. See further as to this subject, post, \ 353. 
 
 3 Little Rock & Ft. S. R. Co. v. Wells, 61 Ark. 354; s. c. 30 L. R. A. 560; 
 Picket V. Morris, 2 Wash. (Va.) 255; Merriman v. Walton, 105 Cal. 403; s. 
 c. 30 L. R. A. 786; Harky v. Tillman, 40 Ark. 561. 
 
 « Little Rock & Ft. S. R. Co. v. Wells, supra. See also Grafton & G. R. 
 Co. V. Davisson, 45 W. Va. 12, 29 S. E. Rep. 1028. 
 
 5 2 Beach, Mod. Eq. Jur. , \ 660, citing Odom v. McMahan, 67 Tex. 292. 
 
 * Beard v. Beard, 25 W. Va. 486. 
 
380 EQUITY PRINCIPLES. 
 
 •ward appears that there was a receipt for the amount of money 
 for which the judgment was taken, equity will enjoin the enforce- 
 ment of such judgment, it appearing that there was no oppor- 
 tunity to make the defense available at law.' 
 
 "Where a judgment and execution creditor files a suggestion 
 against a debtor of the judgment and execution debtor, to en- 
 force his execution lien, and the debtor summoned upon such 
 suggestion appears in court and answers that he is indebted to 
 the judgment and execution debtor in a sum greater than the 
 amount of the judgment creditor's debt including principal, in- 
 terest and costs thereon, and the court in rendering judgment 
 upon such answer of the garnishee against him by miscalculation 
 of the amount of the judgment creditor's debt including prin- 
 cipal, interest and costs, such judgment may be amended under 
 the provisions of the fifth section of chapter one hundred and 
 thirty-four of the Code of this state upon notice and motion; and 
 the excess of the judgment against such garnishee affords no 
 grounds for the interposition of a court of equity to enjoin, cor- 
 rect or set aside such judgment because of such excess.' 
 
 § 272. Injunctions against decrees in chancery — 
 
 "It may be stated as a general rule that equity will not enjoin 
 its own proceedings, and that a decree of a court of equity will 
 not be restrained. The rule is based upon the obvious reason 
 that by enjoining its own decrees, the court would thereby declare 
 that to be improper and wrong which it had previously declared 
 to be proper and right."' And a final decree in equity will not 
 be enjoined on grounds of equity existing prior to its rendition, 
 and which might have been relied upon in the original suit, un- 
 less the equities are such as to authorize a bill of review.* Our 
 statute provides that a court or judge allowing a bill of review 
 may award an injunction to the decree to be reviewed.' But, 
 notwithstanding the general rule as given above in a proper case 
 an injunction will be awarded to the enforcement of a decree ren- 
 dered by a court of chancery.* 
 
 ■ Harvey v. Seashol, 4 W. Va. 115. 
 
 = Alleman v. Knight & Bro., 19 W. Va. 201. 
 
 3 High on Inj., § 161. < Idem, \ 105. 
 
 5 Code, chap. 133, sec. 5. « Buster v. Holland, 27 W. Va, 510, 511. 
 
INJUNCTIONS. 381 
 
 (XIV) 
 § 273. Injunctions to enjoin the prosecutions of actions 
 at lavsr — 
 
 While there are numerous occasions upon which equity will 
 enjoin the prosecution of actions at law, whereby accident, fraud, 
 mistake or otherwise, a party has an undue advantage in pro- 
 ceeding in a court of law,^ yet it is a well settled rule that a 
 court of equity will not interfere to enjoin a pending or threatened 
 suit at law in any case to which there may be made a complete 
 legal defense in the law court. ^ 
 
 Neither will an injunction issue from one court to prevent a 
 person from bringing a suit in another court of competent or con- 
 current jurisdiction to enforce a right or redress a grievance.' 
 Nor will the simple fact that a party or his assignee sue on a 
 false claim or one which he knows had been previously adjudged 
 invaUd by a comf)etent court, authorize the issuing of an injunc- 
 tion to restrain thfe prosecution on the ground of fraud upon the 
 rights of the party thus sued.* 
 
 ' 2 Story, Eq. Jur., § 885. 
 
 = Bergen v. Jeffries, 80 Ala. 349; Dorsey v. Monett, 00 Md. cxxs; s. c. 
 20 Atl. Rep. 196; Freeman v. Carpenter, 147 Mass. 23; s. c. 16 S. E. 
 Rep. 714, 2 Beach, Mod. Eq. Jur., § 654; Rogers v. Rogers, 37 W. Va. 
 407; s. c. 16 S. E. Rep. 633; Hawkinberry v. Snodgrass, 39 W. Va. 332; 
 s. c. 19 S. E. Rep. 417; Evans v. Taylor, 28 W. Va. 684. "The defendant 
 in an action of ejectment cannot maintain a bill in equity to enjoin the 
 plaintiff from proceeding with his suit on the ground that the tax deed un- 
 der which the plaintiff claims was irregularly obtained, unless such defend- 
 ant shows some privity with the title which was sold at such delinquent tax 
 sale, or that for some reason he was entitled to redeem such land. Where 
 complainants are in the possession of real estate, they cannot enjoin defend- 
 ant, who is out of possession, from prosecuting an action of ejectment 
 against them for the recovery of the premises on the ground that the deed 
 under which the plaintiff claims is absolutely void, either for want of de- 
 livery and acceptance or because obtained by duress or fraud, since, in 
 either event, the defense in the action of ejectment would be complete." 
 Hawkinberry v. Snodgrass, 39 W. Va. 332; s. c. 19 S. E. Rep. 417. 
 
 3 State V. Judge, 39 La. Ann. 619; s. c. 2 Smith, Rep. 385; 2 Beach, Mod. 
 Eq. Jur., § 651. 
 
 * Evans V. Taylor, 28 W. Va. 194. "It is a moral wrong, and in some 
 cases a fraud, for any person to resort to the courts to enforce the pa}Tnent 
 of an unfounded or lonjust claim, but it is not a wrong or frand that a court 
 of equity will enjoin. In nearly all contested claims, the defendant dis- 
 putes the justice of the plaintiff's demand. If, therefore, a court of equity 
 could be called upon to interfere and restrain the plaintiff from prosecuting 
 
382 EQUITY PRINCIPLES. 
 
 In Bvans v. Taylor, supra, tlie court says: ' 'To entitle a de- 
 fendant to relief in equity, it devolves upon him to show in his 
 bill not only that he has a valid claim or defense, but also that 
 it is such that he cannot avail himself of it fully at law, or if it 
 is a legal defense, that he was prevented from making it at law 
 by fraud, accident or some adventitious cause unmixed with 
 laches or negligence on his part." 
 
 § 274. As to equitable legal defenses — 
 
 If a defendant has a legal defense and also a distinct equitable 
 ground for relief against the plaintifiE, he may bring his suit in 
 equity without waiting for the determination of the suit at law, 
 and may without being compelled to waive his legal defense by 
 confessing judgment, have a hearing in a court of chancery on 
 the merits of his case and a decree for the proper rehef . But 
 whether an injunction will be granted without requiring a con- 
 fession of judgment at law, is discretionary with the judge grant- 
 ing the injunction.^ 
 
 If, in such a case, a confession of judgment in the action at 
 law is required, the order should require the judgment to be 
 taken "to be dealt with as the court shall direct.'"' 
 
 his claim in a court of law, because in the estimation of the defendant such 
 claim was unjust and unfounded, very few cases at law could escape such 
 interference. It is no greater wrong or fraud for a party to sue on a claim 
 that had been adjudged invalid in a previous suit than it would be for a 
 plaintiff to sue on a claim which he knew was unjust, or which he knew 
 could be successfully defended. Yet no one ever supposed that the remedy 
 for the defendant in such case was in a court of equity, however fraudulent 
 the defendant might regard the claim and conduct of the plaintiff. In 
 such case, the defense must be made in the law court, and the infliction of 
 costs on the plaintiff by such court is generally regarded as sufl5.cient pun- 
 ishment for his false clamor." Evans v. Taylor, supra. 
 
 ' Knot V. Seamonds, 25 W. Va. 99. "The statute giving the right to a de- 
 fendant to defend at law or obtain relief in equity, if he avails himself of his 
 right to make his defense at law, and a judgment is rendered against him, 
 he cannot afterwards obtain relief in equity." Idem.. See also Miller v. 
 Miller, 25 W. Va. 495; Parsons v. Snyder, 42 W. Va. 517, 26 S. E. Rep. 285. 
 
 = Miller v. Miller, supra. "Though the order requiring the confessing of 
 the judgment is absolute as a condition on which the injunction order shall 
 take effect, and the court afterwards on a hearing or on a motion to dissolve 
 the injimctiou is of opinion, that the plaintiff's defense to the action is legal, 
 and that a court of equity has no jurisdiction to interpose by injunction still 
 the court ought not to dissolve the injunction or dismiss the bill, until the 
 plaintiff has caused the judgment at law, which he has obtained, to be set 
 
INJUNCTIONS. 383 
 
 (XV) 
 § 275. Injunctions to prevent a multiplicity of suits — 
 
 Equity interposes its aid to prevent a multiplicity of suits upon 
 the principles of peace, and the avoidance of unnecessary and 
 vexatious litigation;^ to prevent a continuous injury in the form 
 of a nuisance;* the avoidance of numerous actions involving the 
 same principle, where the point in dispute between the parties 
 can as well be settled in one action;' to prevent the threatened repe- 
 tition of distinct trespasses;* ' 'and it may be laid down as a gen- 
 eral rule that whenever the rights of a party aggrieved cannot be 
 protected or enforced in the ordinary course of proceeding at law, 
 except by numerous and expensive suits, a court of equity may 
 properly interpose and afford relief by injunction."* 
 
 § 276. Cases Avherein equity \vill interpose to prevent a 
 multiplicity of suits — 
 
 The following are some of the most conspicuous instances in 
 which equity has interposed by injunction to prevent a multi- 
 plicitly of suits: to prevent the invasion or disturbance of a fran- 
 chise;* to prevent the collection of an illegal tax;' to prevent the 
 commission of waste;' to avoid the creation or continuance of 
 nuisances.' 
 
 aside, and the common-law case reinstated, as it was, when the injunction 
 was granted, and the setting aside of this judgment and the reinstatement of 
 this common-law case on the docket should be ordered by the chancery 
 court." Miller v. Miller, supra. 
 
 ' Fellows V. Spaulding, 141 Mass. 89; s. c. 6 N. E. Rep. 548; Carruthers v. 
 Carruthers, 107 Ind. 550; s. c. 8 N. E. Rep. 563; Porter v. Reed, 00 Mo. 000; 
 s. c. 27 S. W. Rep. 356; I/ivingston v. Livingston, 6 John Ch. 500. 
 
 = Ulbricht v. Eufaula Water Co., 86 Ala. 587, 6 So. Rep. 78, 4 L. R. A. 
 572; Moore v. Chicago, B. & Q. Co., 75 Iowa, 563; s. c. 39 N. W. Rep. 390. 
 
 3 Cuthbert v. Chauvet, 37 N. Y. S. R., 14 N. Y. Supp. 385; Norfolk & N. 
 B. Hosiery Co. v. Arnold, 143 N. Y. 265; s. c. 38 N. E. Rep. 271. 
 
 < Murphy v. Lincoln, 63 Vt. 278; s. c. 22 Atl. Rep. 418; Griffith v. Hil- 
 liard, 64 Vt. 643; s. c. 25 Atl. Rep. 427. 
 
 ' 'Equitable jurisdiction to prevent multiplicitly of actions will not authorize 
 an injunction against numerous actions for damages by plaintiffs who have 
 no community of interest or tie or connection between them except that each 
 has sufiered from the same alleged negligence on which their actions are 
 based." Tribbette et al. v. Illinois Central R. Co., 19 I,. R. A. 660. 
 
 5 High on Inj., ? 12. "2 Beach, Mod. Eq. Jur., \ 676. 
 
 ^ Idem, \l 697, 705. « Idem, I 729. 
 
 « Idem, \ 739, As to the matters noticed in the next two preceding sec 
 tions. See further, Ch. XXXI, \\ 34S-3S0. 
 
384 EQUITY PRINCIPtBS. 
 
 (XVI) 
 INJUNCTIONS IN MISCELIvANBOUS MATTERS. 
 § 277. Injunctions to enjoin an action or proceeding to 
 make set-off available — 
 
 As a general rule, an injunction does not lie to a judgment or 
 action thereon to let in set-ofEs;i but where the judgment creditor 
 is insolvent, the rule is relaxed and an injunction for such pur- 
 pose will be awarded.' But the mere insolvency of a judgment 
 creditor will not of itself justify an injunction against the en- 
 forcement of a judgment at law upon the ground of set-off, 
 which might have been pleaded at law at the time such judg- 
 ment was recovered.' 
 
 To authorize a set-off, there must be opposite demands arising 
 out of judgments or decrees between the same parties, in the 
 same right, and the appUcation for relief by injunction should 
 not be delayed until the interests of third parties hdve become 
 involved.* 
 
 § 278. Injunctions as to trades unions and strikes- 
 It was at one time in England and this country maintained by 
 some judges that trades unions were illegal combinations and in- 
 dictable at common law.* But it is now well settled in this coun- 
 
 ' Jarrett v. Goodnow, 39 W. Va. 602; s. c. 20 S. E. Rep. 375. 
 
 ' Jarrett v. Goodnow, supra; Farland v. Wood, 35 W. Va. 458; s. c. 14 S. 
 E. Rep. 140; Memphis & Charleston R. Co. v. Greer, 87 Tenn. 698; s. c. 4 
 I<. R. A. 858; Beard v. Beard, 25 W. Va. 486. 
 
 3 Sayre v. Harpold, 33 W. Va. 553; s. c. 11 S. E. Rep. 16. 
 
 * Nuzum V. Morris, 25 W. Va. 559. Where a railroad conductor on a 
 freight train has recovered a judgment against the railroad company for per- 
 sonal injuries from an accident on the road, and he is insolvent, the collec- 
 tion of so much of said judgment as -will be sufficient to protect the com- 
 pany may be enjoined, to await the result of a suit against the company for 
 injuries, arising from the same accident, to a passenger on the train who 
 was wrongfully given a. passage by the conductor against the rule of the 
 company, the conductor's act being the proximate cause, as between him 
 and the company, of the injury to such passenger, and the company being 
 entitled to collect the amount which it may, in the suit by the passenger, be 
 compelled to pay. Memphis & Charleston R. Co. v. Greer, supra. There 
 will be found a valuable note on this subject to I/ittle Rock & Ft. S. R. Co. 
 v. Wells, 30 1,. R. A. 569-571. 
 
 5 See the court's opinion in Longshore Printing & Pub. Co. v. Howell, 26 
 Or. 527, 28 L. R. A., at pp. 470, 471. 
 
INJUNCTIONS. 385 
 
 try, as well as in England, that these unions are lawful associa- 
 tions, and that they may adopt any lawful rules and by-laws, 
 having for their object or purpose the obligation of the members 
 not to work except under certain conditions, and to support one 
 another in the event of being thrown out of employment in car- 
 rying out the views of the majority of the members;^ neither is 
 it unlawful to make provisions in their by-laws limiting the num- 
 ber of apprentices to a certain number of regular employes, nor 
 is it unlawful for their members to combine for the purpose of 
 maintaining wages. ^ 
 
 But it must be understood that these associations, like other 
 voluntary societies, must depend for their membership upon the 
 free and untrammeled choice of each individual member. No 
 resort can be had to compulsory methods of any kind, either to 
 increase, keep up, or retain such membership. Nor is it per- 
 missible for associations of this kind to enforce the observance of 
 their laws, rules, and regulations through violence, threats, or 
 intimidation, or to employ any methods that would induce intim- 
 idation or deprive persons of perfect freedom of action. Such 
 organizations may be preserved, and their membership aug- 
 mented, by reasoning and fair arguments, and even by persua- 
 sion and entreaty, and an observance of their adopted constitu- 
 tion and by-laws may be exacted through the same peaceful 
 means, but beyond this it is not advisable, from a legal stand- 
 point, to venture.' 
 
 Under the broad doctrines of our constitutions and laws, not 
 only has an employe the right to quit work singly, unless he has 
 otherwise contracted, and then he is only answerable in damages, 
 but employes formed into a society as a trades union may quit in 
 a body,* and in the use of fair means, may communicate their 
 reasons and intentions therefor to their employers. ° And they 
 may do this, though the effect thereof will be to cripple the 
 property, or prevent or hinder the operation thereof, as where 
 
 ■ Idem. " Idem. 
 
 ^ Idem., pp. 471, 472. See also Carew v. Rutherford, 106 Mass. i, 8 Am. 
 Rep. 287; Snow v. Wheeler, 113 Mass. i86; State v. Stewart, 59 Vt. 289, 59 
 Am. Rep. 710. 
 
 < Arthur v. Oakes, 24 U. S. App. 239, 25 L. R. A. 414. 
 
 5 I<ongshore Printing & Pub. Co. v. Howell, supra, citing numerous cases. 
 
 25 
 
386 EQUITY PRINCIPIvBS. 
 
 the quitting the employment of a railroad company will neces- 
 sarily have the effect to stop its operations for the time being.^ 
 
 The more common instances wherein relief is sought by means 
 of injunction so far as trades unions may be said to be con- 
 cerned, are those relating to strikes instituted by workingmem 
 and employes. 
 
 Here, some advocates for the jurisdiction of the courts to in- 
 terpose the strong arm of the law by means of injunction have- 
 gone to the extent of saying that there is no such thing as a law- 
 ful or peaceful strike. This is not a tenable doctrine, either upon 
 reason or principle, when the meaning of the word ' 'strike' ' is 
 considered. Perhaps a just definition of this term would be a. 
 combined effort on the part of a body of workmen employed by 
 the same master to enforce a demand for higher wages, shorter 
 hours, or some other concession, by stopping work in a body at a 
 prearranged time, and refusing to restune work until the de- 
 manded concession shall have been granted.' 
 
 In the case of Arthur v. Oakes, cited in the foot notes. Justice- 
 Harlan says: "I am of opinion that strikes are not necessarily 
 illegal. A strike is properly defined as a simultaneous cessation 
 of work on the part of the workmen, and its legality or illegality 
 must depend on the means by which it is enforced and on its ob- 
 jects. It may be criminal, as if it be a part of a combinatiort 
 for the purpose of injuring or molesting either masters or men; 
 or it may be simply illegal, as if it be the result of an agreement 
 depriving those engaged in it of their liberty of action; or it 
 may be perfectly innocent, as if it be the result of the voluntary 
 combination of the men for the purpose only of benefiting them- 
 selves by raising their wages, or for the purpose of compelling 
 the fulfillment of an engagement entered into between employers- 
 and employes, or any other lawful purpose."' Hence, as long 
 as a strike is lawful, equity will not interpose by an injunction to- 
 prevent its continuance, if only lawful means are used to make 
 
 ' Arthur v. Oakes, supra. 
 
 ' 24 Am. & Eng. Enc. Law, 123; Allen, J., in Delaware, I,. & W. R. 
 Co. V. Bowns, 58 N. Y. 582; Longshore Printing & Pub. Co. v. Howell,. 
 supra; Arthur v. Oakes, supra. 
 
 « This language of the learned Justice of the Supreme Court of the United 
 States is quoted with approval by the court in Longshore Printing & Pub.. 
 Co. V. Howell, supra. 
 
INJUNCTIONS. 387 
 
 it efEectual.^ But, ou tlie other hand, an injunction will be 
 granted where the members of a labor organization, or other em- 
 ployes, conspire unlawfully to interfere with the management or 
 business of another, and to compel the adoption of a particular 
 scale of wages, by congregating riotously and in large numbers 
 at and near the place of business of such other person, and for 
 the purpose of preventing other laborers from entering into such 
 other person's employment or remaining in such employment, 
 by intimidation, consisting in physical force, or injury, either 
 actual or threatened, to person or property.^ In such case, how- 
 ever, it must clearly appear from the bill for the injunction that 
 the plaintiff will sustain irreparable injury, unless the threatened 
 acts are restrained.' 
 
 § 279. Injunctions as to boycotts — 
 
 An examination of the authorities clearly discloses that the 
 term "boycott" essentially embodies the idea of an unlawful 
 combination or conspiracy. This is deducible from the very 
 origin of the word itself.* The books abound in varioiis defini- 
 tions of this word. Thus, it is said that "a boycott is an illegal 
 conspiracy in restraint of trade;"* "a malicious attempt to injure 
 
 ' Arthur V. Oakes, supra; Longshore Printing & Pub. Co. v. Howell, 
 supra; Rogers v. Evarts, 17 N. Y. Supp. 264; Johnston Harvester Co. v. 
 Meinhardt, 9 Abb. N. C. 393, 24 Hun. 489; Reynolds v. Everett, 144 N. Y. 
 189, 39 N. E. Rep. 72. 
 
 "Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811; Arthur 
 V. Oakes, supra; Coeur D'Alene Consolidated Mining Co. v. Miners' 
 Union, 51 Fed. Rep. 260; s. c. 19 L. R. A. 382; Toledo, Ann Arbor & North 
 Michigan R. Co. v. Pennsylvania Co., 19 I,. R. A. 387. 
 
 3 Reynolds v. Everett, 144 N. Y. 189, 39 N. E. Rep. 72; Worthington v. 
 Waring, 157 Mass. 421, 20 L. R. A. 342; Mechanics' Foundry of San Fran- 
 cisco V. Ryall, 62 Cal. 416. 
 
 * Crump V. Commonwealth. 84 Va. 927, 6 S. E. Rep. 620 and at page 627; 
 State V. Glidden, 55 Conn. 76, 8 Atl. Rep. 890. 
 
 The term boycotting was derived from the name of Captain Boycott, an 
 agent of l^ord Eame, and a farmer of Lough Mask, in the District of Con- 
 nemara Ireland. The people of his neighborhood took offense at him, and 
 resolved not to have, or allow others to have, any communication with him. 
 And to that end employed unlawful means to accomplish their purposes, so 
 that Captain Boycott was compelled to call in the aid of the police to gather 
 
 his crops. 
 
 5 Casey v. Cincinnati Typographical Union, No. 3, 45 Fed. Rep. 135, 12 L. 
 
 R. A. 193. 
 
388 BQUITY PRINCIPI<ES. 
 
 the business of a particular person by interfering with his trade 
 or his employes;" ^ "an organized effort to exclude a person from 
 business relations with others, by persuasion, intimidation and 
 other acts which tend to violence, and thereby coerce him, 
 through fear of resulting injury, to submit to dictation in the 
 management of his affairs. ' ' ^ 
 
 Without attempting a complete definition of this term within 
 the meaning of the law, we think that we are sustained by the 
 decisions in saying that a boycott, of which a court of equity 
 will take cognizance and extend its aid by injunction to prevent, 
 is a combination of persons created for the purpose of injuring or 
 destroying the business of another, either by efforts to prevent, 
 by unlawful means, the sales of his products to the public or the 
 use of some particular thing in his business, or by materially 
 lessening or entirely stopping the manufacture of his products, 
 through the loss or want of the necessary or proper employes, 
 vehicles or machinery, the lack whereof is caused or brought 
 about by the illegal acts of such combination, or by the union of 
 both of these unlawful and unwarranted agencies operating at 
 the same time upon the business of such other person.' 
 
 In the case of I/Ongshore Printing and Publishing Co. v. Howell, 
 cited in the foot notes, Wolverton, J., in the course of his 
 opinion, speaking for the court, says: "Recent decisions sustain 
 the doctrine that in a proper case, where two or more persons 
 confederate together for the purpose of destroying or injuring the 
 business of another, or doing violence to his property or property 
 rights, and it is clearly made to appear that the injury is 
 threatened and imminent, and will become irreparable to the 
 suitor, injunction will lie to restrain the conspirators."* It is 
 settled by repeated adjudications that equity will enterpose to 
 
 ' 28 L. R. a; 464, note. 
 
 • In the opinion of the court in Casey v. Cincinnati Typographical Union, ■ 
 No. 3, supra. 
 
 3 Vegelahn v. Guntuer, 167 Mass. 92, 35 L. R. A. 722; Casey v. Cincinnati 
 Typographical Union, No. 3, supra; Toledo, Ann Arbor & North Hich. R. 
 Co. V. Pennsylvania Co., 19 I,. R. A. 395; Hopkins v. Oxley Stave Co., 28 
 C. C. A. (U. S.) 99; Sherry v. Perkins, 147 Mass. 212, 17 N. E. Rep. 307; 
 People V. Sheldon, 8 Am. R. & Corp. Rep. 598, note, pp. 598-609; Arthur v.' 
 Oakes, 10 Am. R. & Corp. Rep., at pp. 444-4451 Jackson v. Stanfield, 137 Ind 
 592, 23 L. R. A. 588. 
 
 * This announcement of principle, made in this opinion by the learned 
 judge, is supported by a long array of citations. 
 
INJUNCTIONS. 389 
 
 enjoin a boycott, where its continuance will operate irreparable 
 injury.^ 
 
 § 280. Illustrative cases of the use and refusal of injunc- 
 tions — 
 
 In the following instances injunctions have been authorized by 
 the courts: To enjoin the collection of purchase-money on land, 
 on the ground of defect of title, after the vendee has taken pos- 
 session under a conveyance from the vendor, with covenants of 
 general warranty where the title is questioned by suit either pros- 
 ecuted or threatened,or where the purchaser can clearly show that 
 the title is defective;^ to enjoin the unauthorized collection of 
 turnpike tolls;^ by an adjoining property owner to prevent the 
 erection of private buildings on a public square or park;* to en- 
 join the payment of orders issued by a board of education of a 
 school district under a contract made by such board so far as the 
 same creates and incurs a debt to be paid out of the school money 
 of the subsequent year;* to enjoin the execution of a writ of ha- 
 bere facias possessionem issued by a court of chancery without a 
 notice to the plaintiff in the injunction suit, and when he was 
 no party to the chancery suit and when he does not claim the 
 land under any one who was a party to such suit, but by title 
 paramount.* 
 
 An injunction will be awarded to prevent the sale of property 
 given in trust, to secure a usurious debt.' 
 
 And ' 'if the purchaser of lands at a sale made by the sheriff 
 
 ' Beck V. Railway Teamsters' Pro. Union (Mich.), 42 L. R. A. 407. See 
 the very numerous cases cited by the court in its opinion rendered in this 
 case at pages 413, 414. 
 
 " Kinports v. Rawson, 29 W. Va. 487; s. c. 2 S. E. Rep. 85; Wamsley v. 
 Stalnaker, 34 W. Va. 214. 
 
 The mere fact that some one has asserted a claim on the land, and that 
 fact is generally known in the community where the land is situated, is in- 
 suflBcient to justify a court of equity in restraining a sale under a trust deed 
 given to secure the purchase-money on the land. Kinports v. Rawson, 
 supra. 
 
 3 Lucas V. Smithfield C. & H. P. Turnpike Co., 36 W. Va. 427; s. c. 15 S. 
 E. Rep. 182. 
 
 < Stunner v. County Court, 42 W. Va. 472, 26 N. E. Rep. 532. 
 
 5 Shinn v. Board of Education, 39 W. Va. 497; s. c. 20 S. E. Rep. 604. 
 
 « Williamson v. Russell, 18 W. Va. 612; Bushong v. Rector, 32 W. Va. 311; 
 s. c. 9 S. E. Rep. 225. 
 
 ■I Code, chap. 96, sec. 7. 
 
390 BQUITY PRINCIPI.BS. 
 
 for delinquent taxes fraudulently represents to the owner of the 
 land, that the land so bought was a different tract of land and 
 one in which the owner has no interest, with a view of pre- 
 venting such owner from redeeming the land within a year of 
 such sale, and it is for that reason not redeemed by the owner, 
 such fraudulent purchaser may be perpetually enjoined from ob- 
 taining a deed for such land." ^ 
 
 Injunction will lie to enjoin the sale of a stock of goods levied 
 on by virtue of an execution against a third party, when the 
 owner has no adequate remedy at law.' 
 
 An injunction may be awarded to enjoin the sale of property 
 set apart as exempt from forced sale under the "Homestead Ex- 
 emption I<aw," in the case of husband or parent, or to protect 
 any plaintiff in a suit for specific property, pending either at law 
 or in equity, against injury from the sale, removal or concealment 
 of such property.' 
 
 In the following cases the use of injunction was refused; to enjoin 
 the secretary of state from delivering to the speaker of the house 
 of delegates the sealed returns of an election for governor;* to 
 enjoin the commissioners of a county from certifying to the gov- 
 ernor the result of their canvass of the votes in their county for 
 representative in the congress of the United States;' to enjoin 
 the exercise of the powers of a committee of an insane person 
 under a void or irregular appointment;* to prevent the sale of 
 personal property of a third person levied on by an officer for un- 
 paid taxes, when such property is not of pecuUar value to the 
 owner.' 
 
 § 281. When and by ■whom injunction may be a^varded — 
 
 Our statute provides that "every judge of a circuit court shall 
 
 have a general jurisdiction in awarding injunctions, whether the 
 
 ' Koon V. Snodgrass, 18 W. Va. 320. 
 
 "A party has a right to quiet his title to a tract of land by enjoining a 
 purchaser at a tax sale from obtaining a deed for his parcel of land, if the 
 defendant did not at such sale in fact purchase his parcel of land." Koon 
 V. Snodgrass, supra. 
 
 " Walker v. Hunt, 2 W. Va. 491. 3 Code, chap. 133, sec. i. 
 
 « Fleming v. Guthrie, 32 W. Va. i; s. c. 9 S. E. Rep. 23. 
 
 5 Alderson v. Commissioners, 32 W. Va. 32; s. c. 9 S. E. Rep. 868. 
 
 « Lance v. McCoy, 34 W. Va. 416; s. c. 12 S. E. Rep. 728. 
 
 ' White V. Stender, 24 W. Va. 615. 
 
INJUNCTIONS. 391 
 
 judgment or proceeding enjoined be in or out of liis circuit, or 
 the party against whose proceeding the injunction be asked re- 
 side in or out of the same. 
 
 When a circuit court or judge thereof shall refuse to award an 
 injunction, a copy of the proceedings in court, and the original 
 papers presented to the judge in vacation, with his order of re- 
 fusal, may be presented to the judge of the supreme court of ap- 
 peals, who may, thereupon, award the injunction.^ 
 
 Our statute also provides that ' 'no injunction shall be awarded 
 in vacation nor in court in a case not ready for hearing, unless 
 the court or judge be satisfied by affidavit or otherwise of the 
 plaintiff's equity, and any court or judge may require that 
 reasonable notice shall be given to the adverse party, or his at- 
 torney at law, or in fact of the time and place of moving for it, 
 before the injunction is awarded, if in the opinion of the court 
 or judge it be proper that such notice should be given. "^ 
 
 The usual practice with us is to verify the bill with the affi- 
 davit of the party himself, or his agent or attorney,' and present 
 the same with its exhibits to the judge. 
 
 § 282. When an injunction takes effect — 
 
 As a general rule, before an injunction can take effect or be 
 at all operative, bond must be given in the manner prescribed 
 by the order of the court or judge issuing the same.* 
 
 By statute an injunction cannot take effect without bond, ex- 
 cept in the case where a personal representative is the party ap- 
 plying therefor, or other persons from whom, in the opinion of 
 the court or judge awarding the same, it may be improper to re- 
 quire bond.* But if by accident an injunction is made to take 
 effect before bond is given, this is not such an error as to war- 
 rant the appellate court in reversing the order granting it.° 
 
 A judge in vacation has the power to hear a motion to give a 
 new injunction bond with an enlarged penalty, and to make an 
 order in vacation requiring such new bond to be given.^ 
 
 The operation and effect of an injunction may be superseded 
 
 ' Code, chap. 133, sees. 6 and 7. ' Idem, I 3. 
 
 3 Code, chap. 125, sec. 42. See also Shonk v. Knight, 12 W. Va. 667. 
 * State V. Irwin, 30 W. Va. 404; s. c. 4 S. E. Rep. 413; C. & O. R. R. Co. 
 y. Patton, 5 W. Va. 234. 
 
 s Code, chap. 133, sec. 10. * C. & O. R. R. Co. v. Patton, supra. 
 
 ? Mason v. Harper's Perry Bridge Co., 17 W. Va. 396. 
 
-592 EQUITY PRINCIPI,ES. 
 
 by bond of indemity if sucb bond of indemnity will promote the 
 ends of justice, and especially if any public interest will suffer 
 by continuing tbe injunction in force pending litigation.^ 
 
 § 283. Of the motion to dissolve an injunction — 
 
 While, as we have just seen,' an injunction may be granted 
 anywhere in the state, it is not so as to the matter of its disso- 
 lution. A motion for dissolution in vacation can only be enter- 
 tained by the judge of the county or circuit wherein the suit is 
 pending.' If the motion is made before the answer is filed, and 
 it is heard upon the bill alone, all the allegations thereof must 
 be taken as true.* But the answer to a bill of injunction may 
 be filed at any time.* 
 
 § 284. W^hen an injunction \irill be dissolved — 
 
 A motion to dissolve an injunction will not be continued unless 
 from some great necessity." And the injunction will be dis- 
 solved on the hearing if the answer fully, plainly and positively 
 denies all the material allegations of the bill on which the in- 
 junction was founded, and there is no proof to sustain such alle- 
 gations.' 
 
 In Shank v. Knight, cited in the foot-note, it is said that there 
 are some exceptions to this general rule, but it ought to be fol- 
 lowed when great injury would result to the defendant if the in- 
 junction was continued till the hearing, and no serious loss would 
 be sustained by the plaintiff if it were dissolved, even if the cause 
 should be decided in his favor on the hearing. But if, on the 
 other hand, the dissolution of the injunction would work a greater 
 hardship or injustice to the plaintiff than a continuance of it in 
 force would to the defendant, the court will not decide a motion to 
 
 • Campbell v. Railroad Co., 23 W. Va. 448. ' Ante, § 282. 
 
 3 Hayzlitt v. McMillan, 11 W. Va. 464; Horn v. Perry, 11 W. Va. 694. 
 •* I/uddiugton v. Tiffany, 6 W. Va. 11. 
 
 5 First National Bank v. Huntington Distilling Co., 41 W. Va. 530; s. c. 23 
 S. E. Rep. 792; Hayzlitt v. McMillan, 11 W. Va. 464. 
 
 * Pithole Creek Petroleum Co. v. Rittenhouse, 12 W. Va. 313. 
 
 ? Sctoonovei v. Bright, 24 W. Va. 698; Ivivesay v. Feamster, 21 W. Va. 
 83; Shank v. Knight, 12 W. Va. 667; Arbuckle v. McClanahan, 6 W. Va. lor! 
 Where the equity of a bill of injunction is not denied, but a new equity is 
 set up by the answer to repel or avoid it, such answer, read as an affidavit 
 on a motion to dissolve, is not sufficient of itself to support the motion. 
 
INJUNCTIONS. 393 
 
 dissolve an ancillary injunction until a submission of the cause, 
 ■wherein the injunction issued, upon its merits.' 
 
 While an injunction may be dissolved even upon motion before 
 process has been served upon the defendant,* yet as a general 
 rule an injunction ought not to be dissolved until all the defend- 
 ants impUcated in the charges made by the bill have answered; 
 unless the plaintiff has shown a lack of diligence in taking the 
 necessary steps to procure the answers of all the defendants; and 
 it will be sufficient if all those upon whom the gravamen of the 
 charges rests have answered;^ and no answer need be filed at all 
 if the bill on its face shows no ground for injunction;'' and, 
 though a cause is not matured for hearing, the injunction may 
 be heard on a motion to dissolve it, if the plaintiff is present in 
 court, and makes no objection.' But the record should show 
 such presence in court, and that objections to hearing the motion 
 to dissolve were argued, or that notice had been duly g^ven.* 
 
 An injunction will not, however, be dissolved where equity 
 
 ■ Robrecht v. Robrecht, oo W. Va. ooo, 34 S. E. Rep. 801. 
 
 » Shidds V. McClimg, 6 W. Va. 79. 
 
 3 Shank v. Knight, supra; Livesay v. Feamster, 21 W. Va. 83; McCoy v. 
 McCoy, 29 W. Va. 794; s. c. 2 S. E. Rep. 809. 
 
 "If an injunction be obtained to stay proceedings on a judgment or de- 
 cree, and the plaintiff neglects for an unreasonable length of time to sum- 
 mon other defendants, or to have an order of publication, or to amend his 
 bill, when he knows there are other necessary defendants in the cause, or 
 otherwise unnecessarily fails to expedite the suit, the court will, on motion 
 of the defendant, even before the answer is filed, dissolve the injunction be- 
 cause of such unreasonable delay caused by the plaintiff 's neglecting his 
 case. But if the defendant, whose judgment is enjoined, acquiesce in it for 
 years by making no motion to dissolve such injunction, if he then move to 
 dissolve it, even after the filing of his answer years after the filing of the bill, 
 the court, because of his long delay, ought to refuse to dissolve the injunc- 
 tion on his motion, but ought to continue it till the hearing, unless the evi- 
 dence to sustain the dissolution is such as to satisfy the court that the case 
 cannot be changed by anv proof which the plaintiff can produce; such, for 
 instance, as a judgment ir decree estopping the plaintiff from proving the 
 material allegations of i-is bill. But in such case the court should require 
 the plaintiff to expedit - his cause, and as promptly as possible have it ma- 
 tured at rules and set fo hearing, under the penalty, in case of failure, of a 
 dissolution of his injuiution on motion before the cause is ready for hearing 
 because of such unreasonable delay." Armstrong v. Wilson, 19 W. Va. 
 108. 
 
 •• Idem; Morehead v. Ford, 6 W. Va. 316. 
 
 5 Brakeley v. Tuttle, 3 W. Va. 86. 
 'Fadely v. Tomlinson, 41 W. Va. 606. 
 
394 EQinTY PRINCIPLES. 
 
 and good conscience require, from anything apparent in the 
 pleadings and proof in the cause, that it would be inequitable to 
 dissolve it.^ It must not be forgotten that when a judge in vaca- 
 tion dissolves an injunction he cannot do more; he cannot decree 
 upon the merits of the cause.' 
 
 § 285. Of the effect of the dissolution of an injunction — 
 
 When an injunction to a judgment has been dissolved, it is the 
 duty of the court to render a personal decree against the defend- 
 ant debtor for the judgment, interest, costs and daniages at ten 
 per cent, while the judgment was enjoined.' But, where the bill 
 was filed to enjoin a void judgment, and the injunction issued 
 thereon is dissolved, the court can enter no personal decree 
 against the plaintiff in the injunction suit, for the amount of the 
 judgment enjoined, but must dismiss the bill with costs;* or to 
 the enforcement of a satisfied judgment and the court dissolves 
 the injunction for want of jurisdiction, it can only dismiss the 
 bill with costs;'' and upon the dissolution of an injunction in a 
 case brought purely as an injunction suit, the bill ought to be 
 dismissed at the term at which the order of dissolution is en- 
 tered.^ 
 
 ■ Heatherly v. Farmers' Bank, 31 W. Va. 70; s. c. 5 S. E. Rep. 754. 
 = Rollins V. Fisher, 17 W. Va. 578. 
 3 Wamsley v. Currence, 25 W. Va. 543. 
 
 * Kanawha & Ohio Railway Co. v. Ryan, 31 W. Va. 364; s. t. 6 S. E. Rep. 
 924. 
 5 Howell V. Thompson, 34 W. Va. 794; s. c. 12 S. E. Rep. 1038. 
 » Yates V. Town of Grafton, 34 W. Va. 783; s. c. 12 S. E. Rep. 1075. 
 
JUDGMENTS AND DBCREES. 395 
 
 CHAPTER XXIII. 
 JUDGMENTS AND DECREES. 
 
 I 286. As to the form of a judgment or decree. 
 
 287. Interlocutory and final judgments and decrees. 
 
 288. When a decree maybe entered in a cause. 
 
 289. When a decree between co-defendants may be entered. 
 
 290. When judgment or decree -will be set aside. 
 
 § 286. As to the form of a judgment or decree — 
 
 ' 'A decree for land or specific personal property and a decree 
 or order requiring the payment of money, shall have the effect of 
 a judgment for such land, property or money, or be embraced by 
 the word "judgment" where used in this (Ch. 139 of the Code) 
 or any of the three (140, 141, 142) succeeding chapters."^ 
 
 Under this law, a decree against a general receiver of the 
 court, requiring the payment of funds in his hands to a party to 
 a cause, being a certain sum on a named future day, has the ef- 
 fect of a judgment and will draw interest from the time on which 
 it is to be paid.^ 
 
 A judgment or decree must designate against whom it is 
 rendered or of whom payment is required.' 
 
 In a decree confirming a sale of real estate, it is bad practice to 
 order the commissioner to convey the legal title to the pur- 
 chaser; it should provide that the legal title be retained until the 
 purchase-money is paid.* And in decreeing the sale of real es- 
 tate, the decree should provide that the cash pajmient be retained 
 by the commissioner making the sale, or be paid into bank to the 
 credit of the suit, subject to the future order of the court, and 
 being thus under the control of the court, the money, upon the 
 the confirmation of the report of sale, will be disposed of in the 
 way that the court shall then deem proper."* 
 
 The decree cannot provide that the land be sold "on some day 
 
 ' Code, chap. 139, sec. i. = Rickard v. Schley, 27 W. Va. 117. 
 
 3 Snider v. Brown, 3 W. Va. 143. 
 
 ■< Glenn v. Blackford, 23 W. Va. 182. s Arnold v. Casner, 22 W. Va. 444. 
 
396 EQUITY PRINCIPI/eS. 
 
 fixed by law for judicial sales," there being no day prescribed by 
 law for such sales. ^ 
 
 Decrees are either interlocutory or final.' A final decree can- 
 not be entered in a case in vacation. 
 
 The distinction between interlocutory and final judgments and 
 decrees is of great practical importance. Very important rights 
 not infrequently depend upon the question whether or not a 
 judgment or decree is final, or merely interlocutory, within the 
 meaning of the law. Thus, there can be no appeal, saving a few 
 exceptional cases,' from the circuit to the supreme court, unless a 
 judgment or decree appealed from be final.* Furthermore, a de- 
 fendant may plead to the merits of an action at law and make full 
 defense thereto as matter of right before final judgment;* and he 
 may file his answer to a bill in equity and make defense thereto 
 as matter of right, at any time before final decree.* In the next 
 succeeding section we shall briefly notice what judgments and 
 decrees are interlocutory and what are final. 
 
 § 287. Interlocutory and final judgments and decrees — 
 
 A judgment is said to be interlocutory which settles a part 
 only of several issues of law or fact.' 
 
 "A final judgment is one which determines the rights of the 
 parties in the suit, or a distinct and definite branch of it, and re- 
 serves no further question or direction for future determination 
 except such as may be necessary to carry it into effect. But a 
 judgment may be final, though it does not determine the rights 
 of the parties, if it ends the particular suit." ' 
 
 Thus, within the meaning of this rule, a judgment of a circuit 
 
 ' McClaskey & Crim v. O'Brien, 16 W. Va. 793. 
 
 " Pmnphrey v. Brown, 3 W. Va. 9; Camden v. Haymond, 9 W. Va. 680; 
 Hincliman v. Morris, 29 W. Va. 673; s. c. 2 S. E. Rep. 863; Arnold v. Lewis 
 County Court, 38 W. Va. 142; s. c. 18 S. E. Rep. 476; Ludlow v. City of 
 Norfolk, 87 Va. 319; s. c. 12 S. E. Rep. 612; Postal Tel. Cable Co. v. Norfolk 
 & Western R. Co., 87 Va. 349; s. c. 12 S. E. Rep. 613. 
 
 3 State V. Hays, 30 W. Va. 107, 3 S. E. Rep. 177, opinion of Snyder, J., at 
 page 185. 
 
 * Code, chap. 135, sec. i; Core v. Strickler, 24 W. Va., at p. 693. 
 
 5 Code, chap. 125, sec. 47. « Idem, sec. 53. 
 
 ' II Enc. PI. & Pr. 965, and the numerous authorities there cited. 
 
 8 Idem, 964, 965. See also Wells v. Jackson, 3 Munf. 458; Manlove v 
 Thrift. 5 Munf. 493; State v. Hays, 30 W. Va. 107, 3 S. E. Rep., opinion of 
 Snyder, J., at page 183; Morgan v. Ohio River R. Co., 39 W. Va 17 ig S E 
 Rep. 588. ^ ■ 
 
JUDGMENTS AND DECREES. 397 
 
 court upon a writ of certiorari reversing a judgment of a justice, 
 setting aside the verdict of a jury on whicli the judgment was 
 based, and granting a new trial, is a final judgment, though it 
 retain the case for retrial.^ 
 
 A decree is treated as interlocutory when the further action of 
 the court in the cause is necessary to gfive completely the relief 
 contemplated by the court.' It is final when it fully decides and 
 disposes of the whole merits of the cause, and reserves no fur- 
 ther questions or directions for the future judgment of the 
 court. ^ 
 
 The definition, as here given, is the one usually found in the 
 books, but it does not embrace all the decrees under our practice, 
 which may not improperly be denominated ' 'final. ' ' In Core v. 
 Strickler, cited in the foot-notes, Judge Snyder observes that "it 
 is difficult to determine from the authorities precisely what is 
 comprehended by the term final decree. There is an apparent 
 inconsistency in the cases on the subject. But I think this is 
 more apparent than real. 
 
 "It must be recollected that there are three kinds of final 
 decrees: 
 
 "First, a decree from which an appeal will lie. This is de- 
 fined by our statute to be any decree or order requiring money to 
 be paid, or real estate to be sold, or the possession or title of the 
 property to be changed, or adjudicating the principles of the 
 cause.* 
 
 "Second, a decree which not only adjudicates all the matters 
 and merits of the cause, but which disposes of the details and 
 puts the parties out of court, so that no further order can be 
 made or action had in the cause unless, by a new proceeding and 
 summons, the parties are again brought before the court.^ 
 
 "Third, a decree to which a bill of review will lie." ' 
 
 ■ Morgan v. Ohio River R. Co., supra. 
 
 ' Miller v. Cook, 77 Va. 806; Wright v. Strother, 76 Va. 857; State v. Hays, 
 supra, in the opinion of Judge Snyder. 
 
 3 5 Enc. PI. & Pr. 950; Battaile v. Maryland Hospital, 76 Va. 63; Barker v. 
 Jenkins, 84 Va. 895, 6 S. E. Rep. 459; Core v. Strickler, 24 W. Va., at page 
 694; Sims V. Sims, 94 Va. 580, 27 S. E. Rep. 436. 
 
 * Here the Acts, 1882, chap. 157, sec. i, is cited. 
 
 5 Here are cited Battaile v. Md. Hospital, etc., 76 Va. 63; Ruhl v. Ruhl, 24 
 W. Va. 279; Harvey v. Bransen, i Leigh, 108; Cocke v. Gilpin, i Rob. Rep. 
 20; Ryan v. McLeod, 32 Gratt. 367. 
 
 ' Here there is cited Rawlings v. Rawlings, 75 Va. 76. 
 
398 EQUITY PRINCIPLBS. 
 
 There is a marked distinction as to the effect of an interlocu- 
 tory decree and one that is final, with reference to the power of 
 the court to modify or set aside the same. During the term of 
 court at which a judgment or decree is rendered, the proceed- 
 ings are said to be in the breast of the court, and it may modify 
 or set aside any judgment or decree, whether final or interlocu- 
 tory;^ but after the close of the term at which a judgment or de- 
 cree has been rendered, a very different rule obtains. In such 
 case, the court may modify or set it aside if it be interlocutory,' 
 but it is otherwise as to a final judgment or decree. The final 
 judgment or decree, as a general rule, ends the case, and neither 
 the parties nor the subject-matter in litigation are any longer be- 
 fore the court, and, therefore, any subsequent action in the case, 
 being without parties or subject-matter before the court, is null 
 and void, unless made under some lawful mode of review.' 
 
 There are many cases found in the reports that may be given 
 in illustration of what is or is not a final judgment or decree. 
 Thus, a decree setting aside a conveyance as fraudulent, and ap- 
 pointing a commissioner to ascertain the location and value of 
 the lands and the liens thereon, is not a final decree, and a de- 
 fendant may file his answer to the bill in such a case after the 
 rendition of such decree.* 
 
 So also a decree is interlocutory, though it directs surveyors to 
 make partition of a tract of land, and make report thereof to the 
 court; ' likewise a decree to foreclose a mortgage and directing a 
 sale of the mortgaged premises;' so a decree empowering a per- 
 sonal representative to sell the lands of his decedent for the pay- 
 ment of debts, and to report his proceedings to a future term of 
 
 ' Kelty V. High, 29 W. Va. 381, i S. E. Rep. 561; Bauk v. Neale, 28 W. Va. 
 744- 
 
 ' Morgan v. Ohio River R. Co., supra, in the opinion of the court, citing 
 I Black, Judgm., | 308; Wright v. Strother, 76 Va. 857. 
 
 3 Green v. Raihroad Co., 11 W. Va. 686; Ruhl v. Ruhl, 24 W. Va.,279; 
 Crim V. Davisson, 6 W. Va. 328; Battaile v. Maryland Hospital, 76 Va. 63; 
 Hall V. Bank, 15 W. Va. 328; Johnson v. Anderson, 76 Va. 766; i Preem., 
 Judgm., § 96; Morgan v. Ohio River R. Co., supra. 
 
 * Welsh V. Solenberger, 85 Va. 441, 8 S. E. Rep. 91. 
 
 5 Young V. Skipwith, 2 Wash. 300. 
 
 « Fairfax v. Muse's Ex'rs, 2 Hen. & Munf. 558; Allen v. Belchers, Id. 
 595. According to Mr. Minor, such a decree, under the tenor of American 
 authority and the English cases, is final. 4 Min. Inst. (Pt. II) 1204; 2 
 Bart., Ch. Pr. 776. 
 
JUDGMENTS AND DECREES. 399 
 
 the court, is interlocutory; ' so a decree in a suit to enforce a 
 mechanic's lien, on a bill taken pro confesso, to pay the amount 
 due the plaintiff, and if this is not done by a certain day, then 
 sale of the land covered by the lien to be made, is interlocutory.' 
 
 § 288. When a decree may be entered in a cause — 
 
 In order to enable or authorize the court to render a decree 
 upon the merits of a cause, all parties in interest must be before 
 the court.' Nor can there be a decree for the sale of real estate 
 until the liens thereon and their priorities are first ascertained.* 
 
 And in a suit to sell real estate on which there has been a com- 
 missioner's report filed and confirmed, showing the lands owned 
 by the debtor, the value and priorities of the liens thereon, it is 
 insufficient to enter a decree ' 'that the lands of said debtor in 
 said report named shall all be severally sold to pay the liens 
 thereon in the order of their priority, as set out in said report," 
 without a further specification of the sums to be paid to the sev- 
 eral creditors, the parcels of land upon which they are charge- 
 able, and the order and priority in which the proceeds of the 
 sales of the several parcels of land shall be appUed/ 
 
 And, as a rule, it is necessary to refer a cause to a commis- 
 sioner, for the purpose of ascertaining and reporting such liens 
 and their priorities.' And in decreeing a sale of land a day to 
 redeem should be given to the judgment debtor, and not to do so 
 is error.' But this rule does not apply to a decree ordering the 
 
 < Goodwin v. Miller, 2 Munf . 42. 
 
 » Hendricks, by Stewart, v. Fields, 26 Gratt. 447. 
 
 Monroe v. Bartlett, 6 W. Va. 441; Johnson v. Young, 11 W. Va. 673; Rol- 
 lins V. Fisher, 17 W. Va. 649. 
 
 3 Camden v. Haytnond, supra; Morris v. Pajrton, 10 W. Va. i; Bland v. 
 Stewart, 35 W. Va. 518; s. c. 14 S. E. Rep. 215. 
 
 ■• Rhorer v. Travers, 11 W. Va. 147; Scott v. Ludington, 14 W. Va. 387; 
 Payne v. Webb, 23 W. Va. 558; McClasay v. Hart, 16 W. Va. 791; Marling 
 V. Robrecht, 13 W. Va. 440; Payne v. Webb, 23 W. Va. 558; Hull v. Hull, 
 35 W. Va. 153; s. c. 13 S. E. Rep. 49. 
 
 5 McCleary v. Grantham, 29 W. Va. 301; s. c. 11 S. E. Rep. 949. 
 
 " Marling v. Robrecht, supra; McClaskey v. Hart & O'Brien, 16 W. Va. 
 791; Payne v. Webb, 23 W. Va. 558. 
 
 'Peck V. Chambers, 8 Mo. 210; Rose & Co. v. Brown, 11 W. Va. 123; 
 Roher v. Travers, Id. 146; Peck v. Chambers, 8 Id. 210. 
 
 "Though the time given in the decree of sale for the payment of a deed 
 of trust or other lien debt be fixed in the decree at fifteen days only, the 
 appellate court will nevertheless presume that the discretion of the court 
 
400 EQUITY PRINCIPIvBS. 
 
 Sale of property under a deed of trust when the rights of other 
 creditors are not involved.^ 
 
 And where the land sought to be sold is subject to a dower in- 
 terest, such dower must be assigned, before any sale of the land 
 can be properly decreed;' unless she has elected to take the 
 value of her dower in money.' 
 
 And for a debt contracted prior to the enactment of chapter 
 three of acts of 1893, no personal decree can be entered against a 
 married woman.* 
 
 Neither can there be a personal decree against any defendant 
 without personal service of process or appearance; ^ nor upon a 
 bill taken for confessed upon an order of publication against a 
 nonresident; ' nor the payment of purchase-money in advance of 
 the time fixed in the contract for its payment; ^ nor against an 
 heir for the debt of the ancestor, except to the extent of assets 
 descended and used by him.' 
 
 § 289. When a decree betvreen co-defendants may be en- 
 tered — 
 A decree between co-defendants can only be based upon the 
 pleadings and proofs between the plaintiff and defendant.' That 
 is, there can be no decree between co-defendants where no decree 
 can be rendered for the plaintiff either because of his failure to 
 prove the case stated in his bill or because the case stated in the 
 bill entitles him to no relief." 
 
 below has been properly exercised in this respect, if no application appears 
 to have been made to that coiart for an extension of the time. ' ' Weinberg v. 
 Rempe, 15 W. Va. 881. 
 
 ' Waterson v. Miller, 42 W. Va. 108 ; s. c. 24 S. E. Rep. 578. 
 
 = Somerville v. Somerville, 26 W. Va. 434; Barbour v. Thompkins, 31 W. 
 Va. 311. 
 
 3 Kilbreth v. Roots, 33 W. Va. 600; s. c. ii S. E. Rep. 21. 
 
 < Tmrk v. Skiles, 33 W. Va. 404; s. c. 18 S. E. Rep. 561. 
 
 ' McGavock v. Clark, 93 W. Va. 810; s. c. 22 S. E. Rep. 864. 
 
 « Barrett v. McAllister, 33 W. Va 738; s. c. 11 S. E. Rep. 220. 
 
 ^ Dunfee v. Childs, 45 W. Va. 155, 30 S. E. Rep. 102. 
 
 " Rex V. Creel, 22 W. Va. 373; Somerville v. Somerville, 26 W. Va. 483. 
 
 "Vance v. Evans, 11 W. Va. 342; Ruffner v.' Hewitt, 14 W. Va. 738; 
 Worthington v. Staunton, 16 W. Va. 208; Burlew v. Quarrier, i6 W. Va. 108; 
 Hofiman v. Ryan, 21 W. Va. 415. 
 
 " Watson V. Nigginton, 28 W. Va. 534; Western Lunatic Asylum v. Miller, 
 29 W. Va. 326; s. c. I S. E. Rep. 740; Roots v. Salt Company, 27 W. Va. 483.. 
 
JUDGMENTS AND DECRBBS. 40I' 
 
 § 290. When judgment or decree will be set aside — 
 
 A judgment or decree may be set aside for fraud, accident, 
 mistake or surprise by an original bill brought for that pur- 
 pose,^ but not for mere amendable, clerical errors and omissions; 
 nor on such grounds is a judgment liable to collateral attack, 
 when they do not affect its validity or render it uncertain as to 
 time, parties or amount;^ and in an appUcation for relief to a 
 court of equity against a judgment, the province of the chan- 
 cellor, as hereafter more fully shown,' is to test the conscience of 
 the parties and not the legaUty of the judgment.' But where 
 fraud is relied upon to set aside or avoid a judgment, the allega- 
 tions of the bill in contravention of the plain recitals of the record 
 of the case wherein the judgment was obtained, must be very 
 clearly and convincingly shown to be true before a court will 
 grant reUef/ And a judgment of the circuit court, affirmed by 
 the supreme court, cannot be impeached or set aside by a suit in 
 equity, brought for that purpose, for any ground of error ap- 
 parent on the face of the record at the time of its rendition and 
 affirmance/ 
 
 The fraud relied on to set aside or impeach a judgment must 
 be an intentional concealment or intentional act done for the 
 piurpose of misleading and taking an undue advantage of 
 the opposite party.' Thus, a suit in equity will lie to set aside a 
 judgment quieting title to real estate which was taken by default 
 after notice by publication where defendant had no actual notice 
 of the action until the time for making a defense had elapsed 
 and plaintiff had no title to the property, but knowingly set out 
 a false statement of the cause of action in his complaint and in 
 the affidavit for publication.* 
 
 ' Manion v. Fahy, 11 W. Va. 482; Braden v. Reitzenberger, 18 W. Va. 286; 
 I Pom., Eq. Jur. (2d ed.), § 319. 
 
 " Fishbume v. Baldwin, 000 W. Va. 000, 32 S. E. Rep. 1007. 
 
 3 Post, ? 352. * Braden v. Reitzenberger, supra. 
 
 5 Braden v. Reitzenberger, supra; Cabel v. Given, 30 W. Va. 760; s. c. 5 
 S. E. Rep. 442. As to efiFect of recital in record of judgment obtained in sister 
 state, see Price v. Schaeffer 161 Pa. St. 530, 25 L. R. A. 699. See ante, p. 275. 
 
 ' Armstrong v. Poole, 30 W. Va. 666; s. c. 5 S. E. Rep. 257. 
 
 ^ Waide v. Southfield, 102 N. Y. 287; Hunt v. Hunt, 72 N. Y. 217; s. c. 28 
 Am. Rep. 129; Bigelow on Fraud (Ed. 1888), 87; Preem., Judgm., ? 344. 
 
 ' Dunlap V. Steer, 92 Cal. 344; s. c. 16 L. R. A. 361. See also Johnson v. 
 Coleman, 23 Wis. 452; Brown v. Brown, 58 N. Y. 609. 
 26 
 
402 BQUITY PRINCIPI,BS. 
 
 In a suit to set aside a decree or judgment, all parties whose 
 rights would or might be affected, in case the same should be set 
 aside, must be made defendants thereto.' 
 
 ' Harrison v. Walton, 95 Va. 721, 30 S. E. Rep. 372. 
 
JUDICIAI, SALBS. 403 
 
 391 
 292. 
 
 293 
 294. 
 295 
 296. 
 297 
 
 CHAPTER XXIV. 
 JUDICIAL SALES. 
 
 The rule of caveat emptor applies to judicial sales. 
 When a judicial sale will be set aside. 
 
 The rights and obUgations of a purchaser at a judicial sale. 
 Upset bids. 
 
 What constitutes a bid at a judicial sale. 
 
 Withdrawing, rejecting and assigning bids, made at judicial sales. 
 The terms of a judicial sale, and whether such sale shall be public 
 or private. 
 
 § 291. The rule of caveat emptor applies to judicial 
 sales — 
 
 The rule of caveat emptor applies to a purchaser at a judicial 
 sale, and though after confirmation of the sale he finds that the 
 title he will procure from the court will be worthless, yet he can- 
 not be relieved'f rom the payment of the purchase-money. ^ There- 
 
 ' Capehart v. Dowrey, 10 W. Va. 130; Young v. McClung, 9 Gratt. 336; 
 Copper V. Hepburn, 15 Gratt. 551; Shields v. McClung, 6 W. Va. 79; Norton 
 V. Taylor, 35 Neb. 466; s. c. 18 L. R. A. 88. If a purchaser wishes to object 
 to the sale because of defect of title he must generally do so before the sale 
 has been confirmed. 2 Bart., Ch. Pr. 1089. 
 
 "In consequence of the application of the rule caveat emptor, relief has 
 been denied to the purchaser where the defendant had no interest, or less 
 interest in the property sold than was supposed; where there was an ease- 
 ment upon the property aflfectimg its value; and where there was a defect in 
 the title to the property at the time of the purchase; or because of any defect 
 which was apparent, or of which he had notice. But the rule that forbids 
 a purchaser to object for defects after the confirmation of the sale, it is said 
 does not apply to defects arising from want of jurisdiction or want of par- 
 ties, and it has no application to the equity of a purchaser arising from after- 
 discovered mistake, fraud or other like matter. In such cases, if the sale and 
 the purchase have been completed, yet if the buyer discovers the defect be- 
 fore he pays his money, he cannot be compelled to complete it. " 2 Bart. , Ch. 
 Pr. 1089, 1090. 
 
 See also Hickson v. Rucker, 77 Va. 135; Langyher v. Patterson, 77 Va. 
 470; Thomas v. Davidson, 77 Va. 338; Boyce v. Strother, 76 Va. 862. "In 
 general, a purchaser at a judicial sale takes subject to liens; he cannot claim 
 to deduct from the price bid the amount required to discharge the land from 
 
404 EQUITY PRINCIPLES. 
 
 fore, a purchaser under a decree of sale is held to know its con- 
 tents, and what property or estate he is to acquire.^ 
 
 This rule is subject to the qualification that the purchaser is en- 
 titled to relief on the ground of after-discovered mistake in mate- 
 rial facts or fraud, where he is free from negligence, but he is bound 
 to examine the title, and rely upon the statements made by the 
 o£B.cer conducting the sale as to its condition, and if he buys with- 
 out such examination he does so at his peril, and must suffer the 
 loss occasioned by his neglect.^ If a purchaser relies upon mis- 
 take as a ground for relief from his purchase, it must be mutual, 
 and if upon fraud, it must be clearly and distinctly charged and 
 proved.' 
 
 § 292. W^hen a judicial sale \^rill be set aside — 
 
 Whether a sale made under a decree of a court of equity ought 
 to be set aside at the instance of a party interested (and none 
 other can make a motion to that end), rests in the sound discre- 
 tion of the court.* 
 
 In the exercise of such discretion the court will set aside a sale 
 when there is sufficient cause therefor;' and what constitutes such 
 cause must depend upon the facts and circumstance of each par- 
 ticular case.^ 
 
 In the exercise of its discretion as to whether or not it will set 
 aside a judicial sale, a court of equity will not exercise an arbi- 
 trary discretion, but a sound legal discretion, in the interests of 
 
 taxes or prior incumbrances. Roberts v. Hughes, 80 111. 130; Vaughn 
 V. Clark, 5 Neb. 238, and see Osterberg v. Union Trust Co., 93 U. S. (3 Otto) 
 424. 
 
 ' First Nat. Bank v. Hyer, 46 W. Va. 13; s. c. 32 S. E. Rep. 1000. 
 
 ' Norton v. Taylor, supra. 
 
 5 Redd V. Dyer. 83 W. Va. 331; s. c. 2 S. E. Rep. 283. 
 
 < Trimble v. Herald, 20 W. Va. 602; Hughes v. Hamilton, 19 W. Va. 368; 
 Hyman, Moses & Co. v. Smith, 13 W. Va. 744; Hilliary v. Johnson, 11 W. 
 Va. 113; Marling v. Robrecht, 13 W. Va. 440, 
 
 5 2 Hughes V. Hamilton, 19 W. Va. 367. 
 
 « Idem; Hyman v. Smith, 13 W. Va. 744; Marling v. Robrecht, supra. 
 Whether the court should confirm a sale, made by commissioners under its 
 decree, must in a great measure depend upon the circumstances of each case. 
 It is difficult to lay down any rule applicable to all cases; nor is it possible 
 to specify any grounds which will justify the court in withholding its ap- 
 proval. Moranv. Clark, 30 W. Va. 539; s. c. 4S. E. Rep. 303; Hartley v. 
 Roflfe, 12 W. Va. 401; Beaty v. Veon, 18 W. Va. 291. 
 
JUDICIAL SALES. 405 
 
 fairness and prudence, and with a great regard to the rights of all 
 concerned.^ 
 
 In some cases the court has made judicial determination of the 
 fact or facts justifj'ing either the confirmation or setting aside of 
 a judicial sale. Thus such sale may be set aside because made 
 for a greatly inadequate price;^ or under a decree in which the 
 liens on the land and their priorities have not been fixed and it 
 appears that injury to the debtor resulted therefrom;' or where 
 the commissioner making the sale, became himself the purchaser 
 or became interested in the sale;* because the purchaser fraudu- 
 lently combined with others to buy the property at a sacrifice, 
 thus preventing competition, and causing the property to sell be- 
 low its value ;^ because of any mistake or misunderstanding between 
 the commissioner making the sale and the bidders whereby the 
 property sold for less than it otherwise would have done;* be- 
 cause the land was sold at private sale when the decree required 
 
 ' Hartley & Co. v. Roffe, 12 W. Va. 401; Moore v. Triplett (Va.), Jan., 1899, 
 "Va. Law Reg., Vol. 4, No. 10, p. 68i. 
 
 ' Hughes V. Hamilton, supra; Tracy v. Shumate, 22 W. Va. 474; Siunett 
 V. Crall, 4 W. Va. 600; Bradford v. McConahay. 15 W. Va. 732. "There being 
 no evidence tending to impeach the fairness of the sale, it cannot be set aside 
 for inadequacy of price, unless it be so inadequate as to justify the presumption 
 of fraud from this inadequacy alone, and it must be so strong and manifest an 
 inadequacy as to shock the conscience and confound the judgment of any man 
 of common sense. Half the estimated value is not such an inadequacy." 
 Bradford v. McConahay, supra. 
 
 A sale under the decree may be set aside before confirmation for gross in- 
 adequacy of price; but if it be attempted to establish this by parol evidence 
 only, the proof must be very clear, especially if a great time has elapsed be- 
 tween the sale and its confirmation, and during this time no advance bid 
 has been made to the court. 
 
 See also Hartley v. Roffe, 12 W. Va. 401; Martin v. Smith, 25 W. Va. 
 579; Beaty V. Vean, 18 W. Va. 261; McMuUen v. Egan, 21 W. Va. 233. 
 
 3 Trimble v. Herald, 20 W. Va. 602; Beard v. Arbuckle, 19 W. Va. 135. 
 
 * Ayers v. Blair, 26 W. Va. 559; Ninam v. Ninam, 22 W. Va. 658; Mc- 
 Celvey v. Thompson, 7 S. C. 185. 
 
 s 2 Bart., Ch. Pr. 1088. 
 
 ' Hilleary & Johnson v. Thompson, 11 W. Va. 113. "At a judicial sale, 
 R. became the purchaser of a tract of land of one hundred acres at J26.00 
 per acre; affidavits in the cause, which were uncontradicted, showed that 
 the land was worth at least $40.00 per acre; there was a misunderstanding as 
 to whether or not the growing crop on the land was being sold with it; the 
 auctioneer either bid himself or received sham bids. Held, that under these 
 circumstances the sale was invalid and ought not to have been confirmed.'.' 
 Idem. 
 
4o6 EQUITY PRINCIPLES. 
 
 it to be by way of public auction;^ wliere land is sold and the 
 parties interested therein are not before the court.' 
 
 And "if it be made to appear to the court, either before or 
 after a sale has been confirmed, that there has been any injurious 
 misrepresentation or fraud, or any unfair concealment by the 
 purchaser, the biddings will be opened, the order of confirmation 
 rescinded, the reported sale rejected, and the property again put 
 into the market and sold. Mere silence, however, on the part 
 of the purchaser, or failure to disclose knowledge on his part of 
 of peculiar value of the property sold, would not be sufficient 
 to set aside a sale fairly made without misrepresentation or 
 fraud.'" 
 
 § 293. The rights and obligations of a purchaser at a 
 judicial sale — 
 
 In sales made by commissioners under decrees and orders of a 
 court of equity, the purchasers, who have bid off the property and 
 complied with the terms of a sale, are considered as haviUg 
 inchoate rights, which entitle them to a hearing on the question 
 of setting aside a sale.* 
 
 In order that property sold at judicial sales should bring a fair 
 price, it is necessary that the titles of purchasers at such sales 
 should be protected;* and therefore where a sale has been made 
 and confirmed in a suit where the parties in interest are before 
 the court, and the proceedings are free from fraud, the reversal 
 or setting aside of the decree or order of sale will not affect the 
 title of the purchaser.^ But he will not be protected in his pur- 
 chase where the record of the case, wherein the decree of sale 
 was entered, discloses the want of necessary parties;^ or where 
 
 ' Hutson V. Sadler, 31 W. Va. 358; s. c. 6 S. E. Rep. 920. 
 
 ' Underwood v. Underwood, 22 W. Va. 303. 
 
 3 2 Bart., Ch. Pr. 1087, 1088. 
 
 < Hughes V. Hamilton, 19 W. Va. 366; Philips v. Dawle, i Neb. 320; Kable 
 V. Mitchell, 9 W. Va. 492; Roberts v. McClelland, 82 111. 538; Blossom v. 
 Milwaukee & C. R. R. Co., i Wall. 655, 17 I,aw. ed. 673. 
 
 5 Capehart v. Downey, 10 W. Va. J30; Dorsey v. Kendall, 8 (Bush) 
 Ky. 294. 
 
 ' Idem. See also Sinnett v. Crall, 4 W. Va. 600; Watson v. Olbrich, 18 
 Neb. 318. 
 
 ' Underwood v. Pack, 23 W. Va. 704; Underwood v. Underwood, 22 W. 
 Va. 303. 
 
JUDICIAL SALES. 407 
 
 he purchases and there has been no process duly executed in the 
 case instituting the suit.^ 
 
 As to the effect of the reversal of a decree of sale upon the 
 right or title of a purchaser at a sale which has been subsequently 
 confirmed, our court in Dunfee v. Childs,' says : "The reversal 
 of a decree under which land is sold will not affect the title of the 
 purchaser, if he is not a party to the suit, or, though a party, has 
 no interest in the debt or cause for which the land is sold; but, if 
 he is a party with such interest in the decree, his title falls 
 with such reversal. If a decree confirming a sale be reversed for 
 error in it, the purchaser's title falls, whether he be a party or 
 not. Where necessary parties, having title, are not before the 
 court, the purchaser's title falls with reversal of decree of sale." 
 
 The rights and title of a purchaser at a judicial sale are not af- 
 fected by the decree providing for the investment of funds or 
 proceeds arising from such sale,^ as he is not bound to see to the 
 application of the purchase-money.* But if a decree requires 
 bond to be given by the commissioner appointed to make the 
 sale, and he sells without giving such bond and fails to pay over 
 the money to the parties entitled thereto, the purchaser must pay 
 the money over again. ^ 
 
 But where a purchaser of land at a judicial sale bought in all 
 the liens save one, for which he was allowed credit, and to pre- 
 vent a resale, he paid into bank, with the court's approval, the 
 amount of this lien, the court recognizing the amount as appro- 
 priated to the owners of the lien, and the bank failed, this is not 
 the purchaser's loss, but that of the owners of the lien.' 
 
 And upon the disaffirmance of a void judicial sale the pur- 
 chaser should be placed in statu quo. To do this where no im- 
 provements have been put upon the property, he must receive 
 back his purchase-money with interest, and be charged with 
 reasonable rents and profits, less the taxes paid by him.' 
 
 » Walworth v. Stevenson, 24 La. Ann. 251. 
 
 = 45 W. Va. 155, 30 S. E. Rep. 102. 
 
 3 Knoots V. Steams, 91 U. S. (i Otto) 638. 
 
 ■• Knoots V. Stearns, 91 U. S. 638, 23 Law. ed. 252; Long v. O'Pallon, 19 
 Howard, 116, 15 Law. ed. 550. 
 
 5 Donahue v. Fackler, 21 W. Va. 124. * Gill v. Barbour, 80 Va. 11. 
 
 ^ Charleston L. & M. Co. v. Brackmeyer, 23 W. Va. 635. '-Although, 
 to the general rule that when a sale made under a valid judgment is set 
 aside, the purchaser is entitled to the return of the purchase-money paid 
 toward the satisfaction of the judgment, the exception exists that, if the 
 
4o8 EQUITY PRINCIPI<ES. 
 
 The owner of the land sold at judicial sale is entitled to receive 
 the rent of the land, as against the purchaser until a confirma- 
 tion of the sale.' 
 
 Before an order for the resale of the property is entered for the 
 purpose of collecting a balance of purchase-money, a rule should 
 be served on the purchaser, to enable him to show cause against 
 such steps.'' 
 
 And the court may order a resale without waiting to exhaust 
 collaterals and especially when suit is required to make the col- 
 laterals available.' 
 
 The successful bidder at a judicial sale imposes upon himself 
 the duty of completing his purchase, and a correspondent liability 
 for a failure in this regard. So that if one becomes a purchaser 
 at such a sale, and fails to complete his purchase as required by 
 the decree of the court authorizing the sale, he is liable for the 
 difEerence between the amount of his bid and the sum realized at 
 the second sale; but, to hold him liable, the sale must be re- 
 ported to the court, and a rule awarded and served upon him to 
 show cause why he should not complete his purchase, or, in de- 
 fault thereof, the property be resold at his expense, and at his 
 risk of liability for any difference between the sum for which he 
 agreed to purchase, by reason of his bid and the sum realized on 
 a second sale of the property.* 
 
 But a court of equity will not give a purchaser at a judicial 
 sale the benefit of his purchase, when he neglects to comply with 
 the terms of sale for an unreasonable time, if a resale is deemed 
 more beneficial to the parties in interest;* and, on the other hand, 
 the court will not compel him to take the land by confirming 
 the sale, where by the acts of the parties to the suit, action on 
 the report of sale has been delayed for such unreasonable length 
 of time, that confirmation of the sale would most probably cause 
 
 purchaser has been guilty of fraud by reason of which the sale is declared 
 void, he cannot claim a return of the purchase-money, yet, to bring a case 
 ■within the exception, the fraud must be clearly proved, and is not to be in- 
 ferred from doubtful facts." Elam v. Donald, 58 Tex. 316. 
 
 ■ Armstrong v. McClure, 4 Heisk. (Tenn. ) 80. = Hill v. Hill, 58 111. 239. 
 
 3 Mosby V. Withers, 80 Va. 82. 
 
 * Stout V. Philippi Manfg. & Mercantile Co., 41 W. Va. 339, 23 S. E. Rep. 
 571. For the course of procedure as to the practical details thereof in cases 
 of this sort, see the opinion in this case. See also as to this subject, 12 Enc, 
 PI. & Pr. 67, and the authorities there cited. 
 
 5 Hyman, Moses & Co. v. Smith, 13 W. Va. 744. 
 
JTJDICIAI, SAI<ES. 409 
 
 him loss, if the purchaser himself has not been guilty of laches 
 or fraud or otherwise in default.' 
 
 § 294. Upset bids — 
 
 Inasmuch as a sale made by a commissioner under a decree of a 
 court of equity is not an absolute sale, and does not become abso- 
 lute until confirmed by the court, ^ it rests in the discretion of the 
 court to receive other bids, known as "upset bids," for the pur- 
 pose of promoting the interests of the parties- to the suit and 
 those interested in the sale of the property.' 
 
 No fixed rule can be laid down as to the amount of an upset 
 bid which will cause the court to set aside a judicial sale and 
 award a resale of the property, as this must be determined by 
 the facts and circumstances of each particular case.* 
 
 A mere advance of ten per cent, as an upset bid, though well 
 secured, is not always to be accepted without regard to the cir- 
 cumstances of the case. But a substantial and well-secured up- 
 set bid should be accepted, unless there are circumstances going 
 to show that injustice will be done to the purchaser or other 
 person." Thus, where sixty-six acres of land were sold for $1 ,961 , 
 and the defendant in the suit showed an offer of an advance bid 
 of $5 an acre, the bidder offering to comply with such terms as 
 the court might impose, it was the duty of the court to accept 
 the bid, and, if such terms were complied with, to set aside the 
 sale and order a resale of the property.* Usually, however, one 
 who was present at the- sale and bid on the property, or had the 
 opportunity of bidding, will not be permitted to put in an upset 
 bid." 
 
 In this state,' there is no inflexible rule fixing the amount of 
 per cent required to be offered in advance of the last bid made at 
 the sale to authorize the court to set aside the sale; the amount 
 of per cent that should be required in such case must, to a very 
 
 ' Idem. 
 
 ' Hartley & Co. v. Roffe, 12 W. Va. 401; Kable v. Mitchell, 9 W. Va. 492; 
 Bank v. Jarvis, 28 W. Va. 814; Moore v. Triplett, 96 Va. 603, 32 S. E. Rep. 50. 
 
 3 Stewart v. Stewart, 27 W. Va. 168; Hansucker v. Walker, 78 Va. 753; 
 Yost V. Porter, 80 Va. 855; Kingwood Bank v. Janis, 28 W. Va. 805; Kable v. 
 Mitchell, 9 W. Va. 492. 
 
 ■• Hansucker v. Walker, supra. 
 
 s Moore v. Triplett (decided by the covirt of appeals of Virginia, January, 
 1899), 4 Va. Law Reg. No. 10, p. 681. 
 
 « Stewart v. Stewart, 27 W. Va. 167. ^ West Virginia. 
 
4IO EQUITY PRINCIPLES. 
 
 great extent, depend upon the amount of the last bid and the 
 circumstances of the case.^ 
 
 The following is suggested in a note to the case of Moore v. 
 Triplett as the proper method of offering an upset bid: "Some 
 party to the suit should except to the report of sale on the 
 ground of inadequacy of price, and, as evidence of the inade- 
 quacy, file with his exceptions, as a part thereof, the upset bid. 
 The upset bid should consist of a written offer, signed by the 
 party, and accompanied by the money or its equivalent, for the 
 cash payment, and bonds with good security for the deferred 
 payments, payable to the commissioner who made the sale. The 
 bonds should be complete and ready for delivery, and should be 
 dated the day of the sale sought to be set aside, and payable ac- 
 cording to the terms of sale. In this way neither time nor in- 
 terest will be lost. If the bid is rejected, the cash and bonds 
 should be returned at once. If accepted, a resale should be or- 
 dered on the same terms as before, unless an upset bid on differ- 
 ent terms has been accepted, in which case it should be on the 
 terms mentioned in the bid, and the decree should direct the bid- 
 ding to commence with the amount of the upset bid. The de- 
 cree might possibly also provide that if no higher bid be made, 
 the sale stand confirmed as of the date of the decree to the party 
 putting in the bid, and on the terms thereof. Of course, if a 
 higher bid be offered, provision should be made for returning to 
 ' the party his cash payment and bonds. ' ' 
 
 § 295. What constitutes a bid at a judicial sale — 
 
 "A bid may be made orally, spoken aloud or privately, or in 
 writing, in words or figures, or by a wink or nod, or in any man- 
 ner by which the bidder signifies his willingness and intention 
 to give a particular price. ' ' * 
 
 A bid may be properly made by letter, but the officer making 
 the sale should announce such a bid.' 
 
 § 296. ^Vithdrawing, rejecting and assigning bids made at 
 judicial sales — 
 
 Until a bid is accepted, it is a mere proposal and may be with- 
 drawn at any time by the bidder, but not after the acceptance of 
 
 ' Kable v. Mitchell, 9 W. Va. 492. 
 
 • 12 Enc, PI. & Pr. 62. . Idem. 
 
JtroiCIAt SAI<ES. 411 
 
 Ms bid.' If a bid has been withdrawn or rejected, the next high- 
 est bidder is not bound by his bid.' 
 
 An officer may properly refuse to entertain a bid of an irre- 
 sponsible bidder;' nor is the officer obliged to entertain any bids 
 coupled with conditions not in conformity with his power.* If 
 he fails to note a bid, the sale may be re-opened, although the 
 purchase has been declared. * But an officer has no right to re- 
 ject a bid otherwise admissible, simply because the time limit for 
 bidding has expired ; nor should he reject a bid once accepted 
 where there is danger that loss to the parties will result from so 
 doing.' 
 
 But there can be no sale and assignment of a bid made at a 
 judicial sale that will in any wise operate to the prejudice of the 
 rights and interests of the parties to the suit.'' So, that where 
 the bidder has sold his bid at an advance, unless the advance 
 paid, or to be paid, inures to the benefit of the parties to the suit, 
 the sale will not be confirmed.* 
 
 • Idem, 64. '' Idem. ^ Idem. « Idem,. s Idem.. ' Idem.. 
 
 1 Camp V. Bruce, 96 Va. 521, 31 S. E. Rep. 901, 43 L. R. A. 146. 
 
 ' Camp V. Bruce, supra. In this case, the court, in its opinion, says: "A 
 court -will never confirm a sale where the bidder has sold his bid at an ad- 
 vance, unless the advance paid or to be paid inures to the benefit of the 
 parties to the suit. It does not allow bidders to trade behind its back, and 
 speculate in that way on property which it is selling. 2 Daniel, Ch. Prac. 
 (5th ed.) 1285; Hodder v. Ruffin, i Tarn. 341. 
 
 " In order to prevent this, it became the practice of the English chancery 
 courts in the time of Lord Elden, it is said, to require the bidder to substitute 
 another in his stead to file an affidavit that there was no underhand bargain 
 between them. Ridgy v. McNamara, 6 Ves. 515; Vale v. Davenport, Id. 615; 
 Holroyd v. Wyatt, 9 Jur. 1072, 2 Colly, 327. 
 
 "The rule of the English chancery courts upon this subject is thus 
 stated in 2 Daniel, Ch. Prac. (5th ed.), 1285: If, after becoming the bidder 
 for an estate, the purchaser is desirous of being discharged from his contract 
 and of substituting another person in his stead, the court will, on motion, 
 make an order to that effect. He must, however, support his motion by an 
 affidavit that there is no underbargain, for the new purchaser may give the 
 other a sum of money to stand in his place, and so deceive the court; and 
 the rule appears to be that, if a purchaser resell behind the back of the court 
 before the purchase is confirmed, the second purchaser is considered as a 
 substituted purchaser, and must pay the additional price into court for the 
 benefit of the estate. When the highest bidder at an auction induced the 
 auctioneer to accept another person in his place, concealing the fact that he 
 had sold his bargain at an advance, which he received and absconded, the 
 
412 EQUITY PRINCIPLES. 
 
 Substitution of anotlier person for the bidder, or an assignment 
 of the bid, is proper in the absence of any fraud connected there- 
 with, and the deed should properly issue to such substitute.^ 
 
 § 297. The terms of a judicial sale, and whether such sale 
 shall be public or private — 
 Our statute provides that a court, in a suit properly brought 
 therein, may make a decree or order for the sale of property in 
 any part of the state, and may direct the sale to be for cash, or 
 on such credit and terms as it may deem best, and may appoint 
 a special commissioner to make such sale.'' But, notwithstanding 
 the discretion of the court under this statute, to direct the sale to 
 be for cash or on a credit, if this discretion should be abused, and 
 a sale directed for cash when it should, under all the circum- 
 stances, be upon a credit, the appellate court will reverse the de- 
 cree for this cause alone, and require the sale to be made upon a 
 reasonable credit.' It is usual in practice in this state and Vir- 
 ginia to decree the sale of real estate upon a reasonable credit.* 
 And under this rule, where a resort to a court of equity is neces- 
 sary by a judgment lien creditor, to fix the priorities of liens 
 and to enforce them against the real estate upon which there are 
 several judgment liens and also a trust deed lien or liens, the 
 practice of a court of equity will be followed in reference to the 
 terms of sale, and the terms of sale prescribed in the deed of 
 trust will not be adhered to; so that, if the trust deed provides for 
 a cash sale, the court may and will decree the sale to be on a rea- 
 sonable credit. ° But the rule is otherwise in Virginia, so that 
 
 property was ordered to be resold, reserving all questions of liability of the 
 original or sub-purchaser. 
 
 "The English rule of requiring affidavits where one purchaser is asked to 
 be substituted for another is a wise one, and in this case the agreement 
 sought to be enforced shows the necessity for some such safeguard in our 
 practice. It might be well for our courts in all such cases, unless the parties 
 consent to the substitution, to adopt the English practice. It is of the ut- 
 most consequence that judicial sales, and especially sales for partition, where 
 infants are generally interested, should be protected from practices and in- 
 fluence which may prevent the lands from bringing the best price." 
 
 ■ Idem. ' Code, chap. 132, sec. i. 
 
 3 Tenant v. Pattons, 6 Leigh, 196; Hafley v. Birchetts, 11 Leigh, 83; Kyles 
 V. Tait, 6 Gratt. 44. 
 
 * See Kyles v. Tait, supra. 
 
 5 Barbour v. Tompkins, 31 W. Va. 410, 7 S. E. Rep. 8. 
 
JUDICIAI, SAI,ES. 413 
 
 where a deed of trust provides for a sale of the property em- 
 braced therein for cash upon default made in the payment of the 
 debt or liability secured thereby, it must be sold accordingly, and 
 the court has no power to direct a sale of the property covered by 
 the trust upon a credit.^ 
 
 It is provided by statute that a court of equity may authorize 
 the sale of infants' lands to be made either publicly or privately, 
 on such terms and in such parcels as may be deemed most bene- 
 ficial to the minor.' It is also one of the inherent powers of a 
 court of equity, as the guardian of infants, to authorize and 
 confirm what is known or called a ' 'private sale, ' ' that is, a sale 
 without advertisement and public outcry.' 
 
 Mr. Rorer says that a private sale, as well as a public sale, 
 may be made if the court deems it advantageous;* and the same 
 author says, in other places in his treatise, that, while it is usual 
 to provide in the decree for a public sale to the highest bidder, yet 
 the court may decree that the sale may be a private one.^ 
 
 The court of appeals of Virginia lays down the principle with- 
 out qualification, that the court of chancery has power to au- 
 thorize a commissioner so sell either at private or public sale.® 
 And in Crim v. Post,' our own court of appeals, in the course of 
 the opinion delivered in that case, says that, ' 'where the court 
 directs the mode, time, place and terms of sale, they must be ad- 
 hered to." But, notwithstanding these authorities, our statute 
 provides that when a court enters a decree for the sale of real 
 estate of the value of five hundred dollars or more, it shall pre- 
 scribe in the decree that such sale shall be advertised in a news- 
 paper by the commissioner or person appointed to make the sale.* 
 And this statute further provides that the commissioner shall 
 state in ]the advertisement the time, terms and place of sale.' 
 This is a mandatory statute, and whenever it appears to the court 
 
 ' Wytheville Crystal Ice and Dairy Co. v. Frick Co., 96 Va. 141, 30 S. E. 
 Rep. 491; Pultz V. Davis, 26 Gratt. 903; Woods v. Krebbs, 33 Gratt. 685; 
 Pairo V. Bethel, 75 Va. 825. 
 
 ' Code, chap. 83, sec. 14. 
 
 3 Barcello v. Hapgood, 118 N. C. 712, 24 S. E. Rep. 124; Rowland v. 
 Thompson, 73 N. C. 514. 
 
 ■• Rorer on Judicial Sales (2d ed.), 2 15. ' Idem, ?? 76, 340. 
 
 * Cox V. Price, 00 Va. 000, 22 S. E. Rep. 512. 
 
 ' 41 W. Va. 397, 23 S. E. Rep. 612. ' Code, chap. 132, sec. la, p. 837. 
 
 ^ Idenk, 
 
414 EQUITY PKINCIPI,ES. 
 
 that the land to be sold is of the value of five hundred dollars or 
 more, the sale must be advertised as required by this statute.^ 
 This necessarily requires and contemplates a public sale, and, of 
 course, at auction and to the highest bidder; else the published 
 notice of sale would be a mere idle procedure. So, by virtue of 
 this law, where the land to be sold is of the value of five hun- 
 dred dollars or more, the sale must be a public one and to the 
 highest bidder. 
 
 But, by virtue of the inherent powers of a court of equity, if 
 the land to be sold is of less value than five hundred dollars, then 
 we doubt not that the court could enter a decree for a private sale 
 thereof. However this may be, we suggest that it would be the 
 safer and better practice to provide in the decree for a public sale 
 by way of auction to the highest bidder. 
 
 ■ Duncan v. Custard, 24 W. Va. 730, 740. 
 
LACHES. 415 
 
 CHAPTER XXV. 
 LACHES. 
 
 J 29&, What is laches and some rules detennining its application. 
 
 299. When laches not imputable. 
 
 300. How the defense of laches may be raised. 
 
 300a. The plaintifiF's bill may show due excuse for his laches. 
 
 § 298. What is laches and some rules determining its 
 application — 
 
 It is one of its maxims that equity favors the vigilant.' And 
 the principle has long been recognized that nothing calls a court 
 of equity into activity but conscience, good faith and reasonable 
 diligence; and where these are wanting the court is passive and 
 does nothing.* It always looks with discountenance upon stale 
 demands.' 
 
 Our supreme court defines laches to be "the inexcusable delay 
 to assert a right, is of equitable cognizance and implies knowledge 
 or the means of knowing one's rights upon the particular facts of 
 each case as it arises." * There can be, however, from the very 
 character of the doctrine, no fixed or determinate rule as to what 
 will constitute laches, but each case as it arises must be deter- 
 mined by its own particular circumstances; in other words, the 
 question is addressed to the sound discretion of the court in each 
 case; ^ but subject to the principle that when a plaintiff comes into 
 a court of equity on any proper ground of jurisdiction, and relief 
 is sought in the case upon a pure legal demand, the court, by 
 analogy, will adopt the time fixed by the statute of limitations 
 
 ' I Beach, Mod. Eq. Jur., I 17. 
 
 = Bill V. Schilling, 39 W. Va. 108, 19 S. E. Rep. 514; Trader v. Jarvis, 23 
 W. Va. 100, 108; Doggett v. Helm, 17 Gratt. 96; Swann v. Thayer, 36 W. Va. 
 46, 14 S. E. Rep. 423. 
 
 3 Swann v. Thayer, 36 W. Va. 46, 14 S. E. Rep. 423. 
 
 < Trowbridge v. Stone's Adm'r, 42 W. Va. 454, 26 S. E. Rep. 364. 
 
 5 Orr V. Pennington, 93 Va. 268, 24 S. E. Rep. 928; i Beach, Mod. Eq. 
 Jur., ? 18; Bryan v. Kales, 134 U. S. 35, 10 Sup. Ct. Rep. 435; Hammond v. 
 Hopkins, 143 U. S. 224, 250; Rogan v. Walker, i Wis. 631. 
 
41 6 EQUITY PRINCIPI<BS. 
 
 as the period at thie end of wliich it will deny recovery.' If, on 
 the other hand, the demand in suit is purely an equitable one, 
 the defense of the statute of Umitations can have no application, 
 of itself, or by analogy, to any limitations in courts of law.' In 
 such case the matter is determined by courts of equity upon rules 
 and principles of their own.' So that in equity long delay in 
 the assertion of a right, unless satisfactorily explained, may con- 
 stitute a defense to the suit, though such lapse of time may not 
 amount to a statutory bar.* 
 
 In those cases where it is sought to enforce purely equitable 
 demands, in which a period of time less than that required for a 
 statutory bar to defeat the action, may be relied on, the most im- 
 portant considerations are generally. First, the death of the 
 parties to the original transaction to be investigated, or the in- 
 tervention of the rights of third persons; Second, the loss of evi- 
 dence when the transactions are complicated so as to render it 
 difficult if not impossible to do justice; and, Third, the character 
 of the evidence; * for instance, if important facts rest upon mere 
 verbal testimony, this will be a consideration of much weight, 
 but otherwise if upon written or documentary evidence,* unless 
 such documentary evidence has been lost or destroyed,' though 
 these are not the only considerations.' Thus if a claimant de- 
 lays the assertion of his claim until after valuable improvements 
 have been made upon the property, or it has greatly enhanced in 
 value, his laches may defeat his claim.' 
 
 ' I Beach, Mod. Eq, Jur., § 20; Sliriver v. Garrison, 30 W. Va. 326, 4 S. E. 
 Rep. 660; Gibson v. Green, 89 Va. 524, 16 S. E. Rep. 66i; Cranmer v. Mc- 
 Swords, 24 W. Va. 594, 600. 
 
 ' Cranmer v. McSwords, supra. 
 
 i Cranmer v. McSwords supra; Trader v. Jarvis, 23 W. Va. 100. 
 
 « Trader v. Jarvis, 23 W. Va. 100, 108; Pusey v. Gardiner, 21 W. Va. 469; 
 Bill V. Schilling, 39 W. Va. 108, 19 S. E. Rep. 514; Swann v. Thayer, 36 
 W. Va. 46, 14 S. E. Rep. 423; Harrison v. Gibson, 23 Gratt. 212. See the 
 numerous cases cited in argument 12 C. C. A. (U. S. ), at pp. 259, 260. 
 
 s Cranmer v. McSwords, supra. 
 
 'Wetzel V. Minn. Ry. Transfer Co., 12 C. C. A. (U. S. ) 493; Trader v. 
 Jarvis, 23 W. Va. 100; Cranmer v. McSwords, supra; Gibboney v. Kent, 82 
 Va. 383; Hatcher v. Hall, 77 Va. 573; Carr v. Chapman, 5 Leigh, 164, 176. 
 
 ' Nelson v. Kownslar, 79 Va. 468; Perkins v. I/ane, 82 Va. 59. 
 
 ' Wetzel V. Minii. Ry. Transfer Co., supra; i Beach, Mod. Eq. Jur., \ 18. 
 
 9 I Beach, Mod. Eq. Jur., \ 18; McClauahan v. Roanoke Iron Co., 95 Va. 
 552, 28 S. E. Rep. 955. 
 
LACHBS. 417 
 
 While the law of laches, as applied in a court of equity to 
 purely equitable claims, is based upon acquiescence and lapse of 
 time,^ in a practical point of view it is really founded upon con- 
 siderations of natural justice and public policy,^ and is firmly en- 
 forced where the usual grounds for its application exist.' 
 
 Frequent application is made by the courts of the doctrine of 
 laches, as shown by the reported cases, to preclude a recovery in 
 the particular case before the court, inasmuch as the delay which 
 has taken place operates to prevent anything but a conjectural 
 conclusion in the premises by the court, and the original transac- 
 tion has become so obscured by time and the loss of evidence, 
 and in most cases by the death of the parties thereto, as to ren- 
 der it diflScult to do justice touching the matter in dispute.* 
 
 In many cases it is a complete defense to the charge of fraud;' 
 to the claim of a ward against his guardian;* to a suit to sur- 
 charge and falsify the settlement of the accounts of a personal 
 representative;^ to suits for specific performance;' and to suits to 
 charge another with a constructive trust, and the like.' 
 
 And especially is laches a good defense to a suit when the 
 parties cannot be restored to their original situation.^" 
 
 ' 1 Beach, Mod. Eq. Jur., § 18. 
 
 ' Gibboney v. Kent, 82 Va. 383; Hatcher v. Hall, 77 Va. 573. 3 Idem. 
 
 < Harrison v. Gibson, supra; Gibboney v. Kent, supra; Wetzel v. 
 Minn. Ry. Transfer Co., supra; Hatcher v. Hall, supra; Bryant v. Groves, 
 42 W. Va. 10; Garland v. Garland (Va.), 24 S. E. Rep. 505; Orr v. Penning- 
 ton, 93 Va. 268, 24 S. E. Rep. 928; Eubanks v. Barnes, 93 Va. 153, 24 S. E. 
 Rep. 908; Jarvis v. Martin, 45 W. Va. 347, 31 S. E. Rep. 957; Williams v. 
 Maxwell, 45 W. Va. 297, 31 S. E. Rep. 909; Mann v. Peck, 45 W. Va. 18, 30 
 S. E. Rep. 206; Kelly v. McQuinn, 42 W. Va. 774, 26 S. E. Rep. 517. 
 
 5 See ante, § 179, and the cases just cited in the last foot-note. 
 
 " Ante, I 225, citing Kelley v. McQuinn, supra. 
 
 1 Ante, § 119; Gibboney v. Kent, supra; Carr v. Chapman, supra; note to 
 Coffey V. Emigh, 10 L. R. A. 125, 126. 
 
 * Post, \ 409; note to Middletown v. Newport Hospital, 1 I<. R. A. 191. 
 
 » Wetzel V. Minn. Ry. Transfer Co., supra; Badger v. Badger, 2 Wall. 87; 
 Philippi V. Philippi, 115 U. S. 151, 5 Sup. Ct. Rep. ri8i; Speidel v. Hen- 
 rici, 120 U. S. 386, 7 Sup. Ct. Rep. 6io; Riddle v. Whitehill, 135 U. S. 621; 
 Wood, Lim. 109, and note. See post, I 569. 
 
 " Peabody v. Elint, 6 Allen, 52, 57; Hayward v. Bank, 96 U. S. 611, 618; 
 Fraker v. Houck, 36 Fed. Rep. 403; i Story, Eq. Jur. (nth ed.), I I38d; U. 
 S. V. Central Pac. R. Co., 26 Fed. Rep. 483. 
 27 
 
41 8 BQUITY PRINCIPLES. 
 
 § 299. When laches not imputable — 
 
 loaches cannot be resorted to as a defense to actions or suits for 
 relief against fraud, unless it appears that there was an unrea- 
 sonable delay in bringing suit after the discovery of the fraud;^ 
 nor can laches be imputed to the holder of a hen in a suit to en- 
 force it in a court of equity;' nor against the beneficiary of an 
 express trust before any repudiation thereof by the trustee;' nor, 
 as a general rule, against an infant;* nor to a married woman, to 
 the extent of any disabilities imposed by coverture;^ nor to an 
 insane person;* nor to one in the possession of land under an 
 equitable title in a suit asserting or defending his title;' nor to a 
 land owner in bringing suit to annul a tax deed, which is utterly 
 void for failure to comply with the requirements of the statute, 
 and which, therefore, does not affect his title;* nor to one who 
 has been wrongfully kept in slavery and unacquainted with his 
 rights;' and it cannot be imputed to one holding the legal title, 
 when invoked by one having only an equitable right;^" nor is 
 laches imputable to the state;" nor to one who is ignorant of his' 
 rights. 1* 
 
 § 300. How the defense of laphes may be raised — 
 
 The manner of making the defense of laches to a suit in equity 
 is strictly matter of procedure and properly has no place in a 
 treatise of this character; but in view of the frequent application/ 
 of this doctrine by courts of chancery, this section is here in- 
 serted for the convenience of the practicing lawyer. Before our 
 our own courts had settled the mode of raising this defense, it 
 
 ' Lamb v. Cecil, 25 W. Va. 288; Virginia Land Co. v. Haupt, 90 Va. 593; 
 s. c. 19 S. E. Rep. 168. See ante, § 179. 
 
 » Gibson v. Green, 89 Va. 524; s. c. 16 S. E. Rep. 661. 
 
 'Post, § 469; Lemoins v. Dunklin Co., 2 C. C. A. (U. S.) 343; Kane v. 
 Bloodgood, 7 John. Qh. 90, Law. ed., Bk. 2, p. 231, and note; Woods v. 
 Stephenson, 43 W. Va. 149, 27 S. E. Rep. 309; Gopen v. Gopen, 41 W. Va. 
 422, 23 S. E. Rep. 579. 
 
 * I Beach, Mod. Eq. Jur., § 19. s Idem. 
 
 ' Trowbridge v. Stone's Adm'r, 42 W. Va. 454, 26 S. E. Rep. 363. 
 
 ? Massenburg v. Denison, 18 C. C. A. (U. S. ) 280. 
 
 8 Cook V. Lasher, 19 C. C. A. (U. S.) 654; State v. Sponangle (W. Va.), 43, 
 L. R. A. 727, in opinion of the court, citing numerous cases. 
 
 9 Jones V. Jones, 92 Va. 590, 24 S. E. Rep. 255. 
 
 " I Beach, Mod. Eq. Jur., § 19. " State v. Sponangle, supra. 
 
 " Jameson v. Rixey, 94 Va. 342, 26 S. E. Rep. 861. 
 
IvACHES. 419 
 
 had long been decided by the English courts, according to an 
 eminet author,^ as well as by the supreme court of the United 
 States,' that laches need not be pleaded to be availed of as a de- 
 fense, but that the matter could be raised and settled by a de- 
 murrer. And our own court opened the way for this method of 
 defense as to laches when it decided, in Jackson v. Hull,' that 
 when the bill shows on its face that the relief sought is barred 
 by the statute of limitations, that advantage may be taken of 
 such bar by demurrer. And later, our court, after a careful ex- 
 amination of the authorities, holds that the defense of laches 
 may be made by demurrer when the facts manifesting it appear 
 in the bill.' It is, perhaps, scarcely necessary to state that this 
 defense may also be made b}' plea or answer." 
 
 It is also held that it is not even necessary to resort to plea, 
 answer or demurrer to make this defense, but that it may be 
 presented by argument, either upon a preliminary or final hear- 
 ing of the cause,* or the laches may be taken notice of by the 
 court on its own motion.' 
 
 § 300a. The plaintiffs bill may show due excuse for his 
 laches — 
 
 As we have seen in the next preceding section, if the laches 
 appear on the face of the bill, it will render the bill demurrable. 
 Therefore, where there has been apparent laches in the prosecu- 
 tion of a suit in equity, the facts and circumstances which will 
 explain or excuse the laches, or will bring the case within any 
 
 ' I Daniel, Ch. Pr., p. 559, | 9. 
 
 » Maxwell v. Kennedy, 8 How. 222; Sullivan v. Railroad Co., 94 U. S. 817. 
 
 3 21 W. Va. 601. 
 
 * Whitaker v. South West Virginia Imp. Co., 34 W. Va. 217, 12 S. E. Rep. 
 507. This decision finds abundant suppdrt in the decisions of other courts: 
 Cammack v. Carpenter, 3 App. D. C. 219; Coryell v. Klehm, 157 111. 462, 41 
 N. E. Rep. 864; Kerfoot v. Billings, 160 HI. 563, 43 N. E. Rep. 804; Meyer 
 V. Saul, 82 Md. 459, 33 Atl. Rep. 539; Warren v. Providence (R. I.), 33 All. 
 Rep. 876. See also Woodmanse & Hewitt Manuf'g Co. v. Williams, 15 C. C. 
 A. 520, 525, 68 Fed. Rep. 489. 
 
 5 Woodmanse & Hewitt Manuf'g Co. v. Williams, supra, citing Maxwell 
 V. Kennedy, supra; Walk., Pat., § 597; Curt., Pat., § 440; Mcl<aughlin v. 
 Railway Co., 21 Fed. Rep. 574; 12 Enc, PI. & Pr. 831. 
 
 ' See the authorities cited under note 5, last above referred to; 12 Enc. PI. 
 & Pr. 830. 
 
 ' Idem. 
 
420 EQUITY PR1NCIPI,ES. 
 
 exception to tlie rule against unreasonable delay, such excuse or 
 explanation should be stated in the bill.' 
 
 A party seeking to avoid the imputation of laches "should set 
 forth in his bill specifically what were the impediments to an 
 earlier prosecution of his claim; how he came to be so long ig- 
 norant of his rights, and the means used by the respondent to 
 fraudulently keep him in ignorance; and how and when he first 
 came to a knowledge of the matters alleged in his bill."^ There 
 should be a distinct and positive allegation as to how and when the 
 matter came to the plaintiff's knowledge.^ If fraud is relied on 
 as the excuse, the particular acts thereof should be set forth by 
 distinct and specific averment,* as well as the manner and time of 
 its discovery.' 
 
 It is settled that a mere voluntary absence from the state, or 
 country wherein the subject-matter of litigation has arisen, is not 
 a sufficient excuse for laches;* nor is the poverty of the plaintiff' 
 an excuse therefor;' nor does the mere unexplained ignorance of 
 the plaintiff constitute a valid excuse;® and especially is this so, 
 when such ignorance is attributable to the plaintiff's negligence, 
 or to his failure to make such inquiries with respect to his rights 
 as, with the information at his command, he ought to have made.* 
 
 ' Eubanks v. Barnes, 93 Va. 153, 24 S. E. Rep. 908; Trader v. Jarvis, 23 W. 
 Va. 100; Jarvis v. Martin, 00 W. Va. 000, 31 S. E. Rep. 957; Fox v. Poster, 
 87 Va. 78, 12 S. E. Rep. 147; Beverly v. Rhodes, 86 Va. 415, 10 S. E. Rep. 
 
 572- 
 
 ' Mr. Justice Grier, in Badger v. Badger, 2 Wall. 87, 88; Naddo v. Bardon, 
 2C. C. A. (U. S.) 335, 341. 
 
 3 12 Enc, PL & Pr. 837. ••Idem. ^Idem, 838, 839. 
 
 « Bill v. Schilling, 39 W. Va. 108; s. c. 19 S. E. Rep. 514; Naddo v. Bar- 
 don, 2 C. C. A. (U. S.) 335, 338; Broderick's Will, 21 Wall. 503, 519; Mc- 
 Quiddy v. Ware, 20 Wall. 14. 
 
 ' Naddo V. Burdon, supra; Hayward v. Bank, 96 U. S. 611, 6i8; Washing- 
 ton V. Opie, 145 U. S. 214, 12 Sup. Ct. Rep. 822; De Estrada v. Water Co., 
 46 Fed. Rep. 280. 
 
 ' Naddo V. Bordon, supra. 
 
 'Wetzel V. Minn. Ry. Transfer Co., 12 C. C. A. (U. S.) 490. 
 
I,OST INSTRUMENTS. 42 1 
 
 CHAPTER XXVI. 
 
 LOST INSTRUMENTS. 
 
 § 301. Jurisdiction in cases of lost instrvunents. 
 
 302. The bill in suits on lost instruments. 
 
 303. What must be shown to maintain suit on a lost instrument. 
 
 304. Suits on lost negotiable instruments. 
 
 305. Equity will set up a lost will. 
 
 § 301. Jurisdiction in cases of lost instruments — 
 
 It is well settled that equity has jurisdiction in all cases of lost 
 instruments, notwithstanding courts of law exercise a like juris- 
 diction.^ The original ground upon which this jurisdiction was 
 based, and the reason assigned therefor, was that in many cases 
 in actions at law it was necessary to make profert of the instru- 
 ment sued on, and, of course its loss precluded this;* and in the 
 next place, it was sometimes necessary to give indemnity to the 
 defendant as a condition precedent to the maintenance of the 
 suit, which could not be required of the plaintiff in a court of 
 law.' At first the jurisdiction was restricted to lost bonds,* and 
 after negotiable paper came into use, equity alone had jurisdic- 
 tion when this class of instruments was lost.' By reason of this 
 classification, it has been contended that suits in equity do not 
 extend to unsealed and non-negotiable instruments which are 
 lost.' But the jurisdiction in equity upon all classes of lost instru- 
 ments, whether sealed or unsealed, negotiable or non-negotiable, 
 is upheld by the decided weight of authority.'' The reason as- 
 signed for this, is that the remedy at law is inadequate, and that 
 equity alone can fully protect the defendant by its decree from 
 all liability which may arise.' 
 
 ' Hickman v. Painter, 11 W. Va. 386; Mitchell v. Chancellor, 14 W. Va. 
 22; Ljfttle V. Cozad, 21 W. Va. 183; Hall v. Wilkinson, 35 W. Va. 167, 12 S. 
 E. Rep. 1118; Yates v. Stuart, 39 W. Va. 124, 19 S. E. Rep. 423; Hunter v. 
 Robinson, 5 W. Va. 272; Shields v. Commonwealth, 4 Rand. 541; Kerney v. 
 Kerney, 6 Leigh, 478; Lyons v. Miller, 6 Gratt. 427; Coffman v. Sangston, 
 21 Gratt, 263. 
 
 » I Beach, Mod. Eq. Jur., ? 26. ^ Idem. • i Pom., Eq. Jur. (2d ed. ) § 71. 
 
 5 Idem. ' Idem, ? 832. ' Idem. « Idem,. 
 
422 EQUITY PRINCIPLBS. 
 
 § 302. The bill in suits on lost instruments — 
 
 The bill should state the loss of the instrument, and the plain- 
 tiff 's inability to find the same upon diligent search, though such 
 omission does not render the bill demurrable;^ and an aflSdavit of 
 the loss of the instrument should accompany the bill, or the bill 
 should be duly verified.' This affidavit of the loss of the bond 
 may be made at any time before the hearing of the case.' 
 
 It is sufficient to maintain the suit if the instrument was 
 actually lost at the time of the institution of the suit, though it 
 should afterward be found before the hearing, provided the 
 plaintiff had used due diligence to find it before the suit was 
 brought.* 
 
 § 303. What must be shown to maintain suit on a lost 
 instrument — 
 
 The mere loss of the instrument is not sufficient of itself to 
 maintain a suit on a lost instrument,' but there must be other 
 equities. He must be entitled to some relief or protection be- 
 yond the mere establishment of the instrument.' 
 
 " In the case of a lost bond or note, he may have a decree for 
 its enforcement and satisfaction. If a deed concerning land is 
 lost, and the party prays discovery and to be established in pos- 
 session under such deed, equity will relieve, for there is no remedy 
 at law; and where the plaintiff is out of possession, there are 
 cases in which equity will interfere upon lost or suppressed title 
 deeds and decree possession to the plaintiff; but in all such cases, 
 there must be other equities calling for the action of the court."' 
 There must also be proof of the contents of the paper sued on." 
 
 § 304. Suits on lost negotiable instruments — 
 
 " The jurisdiction of equity in the case of lost negotiable in- 
 struments was founded in the want of power in courts of law to 
 regulate the security to be given to the defendant against the 
 forthcoming bill. And the jurisdiction was established upon the 
 
 ' Robinson v. Dix, 18 W. Va. 528; Moore v. Smith, 26 W. Va. 379. 
 " Hunter v. Robinson, 5 W. Va. 272; i Beach, Mod. Eq. Jur., § 27; Lytic v. 
 Cozad, 21 W. Va. 183. 
 3 Lyttle V. Cozad, supra. ♦ Idem. 
 
 5 I Beach, Mod. Eq. Jur., § 28. « Idem. r Idem. 
 
 ' Edgell V. McConaway, 24 W. Va. 747. 
 
I<OST INSTRUMENTS. 423 
 
 ground before the rule had been settled in the courts of law that 
 no action could be maintained on a lost bill or note.'" 
 
 In a suit on a lost negotiable instrument, it is the safer and 
 better practice to offer in the bill to give a proper indemnity un- 
 der the direction of the court.^ But, under all circumstances, the 
 court cannot decree relief without providing therein ample in- 
 demnity for the protection of the makers and indorsers of the 
 paper sued on, and the decree should provide that the plaintiff 
 take no benefit under the decree until the indemnity required be 
 given.' It is not necessary to tender a bond of indemnity before 
 the institution of the suit.* 
 
 § 305. Equity will set up a lost will — 
 
 A court of equity, as well as a court of probate, may estab- 
 lish a lost, suppressed or destroyed will upon a bill brought for 
 that purpose.' But the order estabUshing the will should set 
 forth its contents, that it was duly executed by the testator,' and 
 direct an issue devisavii vel non to be tried by a jury as to the 
 validity of such will, if required by the parties or either of thfem.^ 
 
 • I Beach, Mod. Eq. Jur., § 29. 
 
 = The Exchange Bank of Virginia v. Morrall, 16 W. Va. 546. 
 3 Idem. * Idem. 
 
 s Dower v. Seeds, 28 W. Va. 113, 114. •" Idem. 
 
 ' Idem. For a further consideration of this matter of lost wills, seeposl, 
 ^437- 
 
424 EQUITY PRINCIPLES. 
 
 CHAPTER XXVII. 
 
 MARRIED AVOMEN. 
 
 i 306. Separate property of married women. How created, and nature 
 thereof. 
 
 307. Contracts of married women. 
 
 308. The earnings of a married woman. 
 
 309. Carrying on business by a married woman. 
 
 310. Insurance of married woman on life of husband — her patents for 
 
 invention and her bank deposits. 
 
 311. Property held or conveyed in trust for married women. 
 
 312. Marriage settlement deeds. 
 
 313. The right of a married woman to dispose of her property. 
 
 314. Suits by and against married women. 
 
 § 306. Separate property of married ^vomen. Ho\v 
 created, and nature thereof. 
 
 Our law provides that all real and personal property hereto- 
 fore conveyed directly to a married woman, or to a trustee for 
 her use, by any person other than her husband, as her sole and 
 separate property, and the rents, issues and profits thereof, shall 
 be and remain her sole and separate property as if she were a 
 single woman; and the same shall in no way be subject to the 
 control of her husband, or liable for his debts. 
 
 The real and personal property of any female who may here- 
 after marry, and which she shall own at the time of marriage, 
 and the rents, issues and profits thereof, shall not be subject to 
 the disposal of her husband, nor be liable for his debts, and shall 
 be and continue her sole and separate property as if she were a 
 single woman.' 
 
 Any married woman may take by inheritance or by gift, 
 grant, devise or bequest, from any person other than her hus- 
 band, and hold to her sole and separate use, and convey and de- 
 vise real and personal property and any interest or estate therein, 
 and the rents, issues and profits thereof, in the same manner and 
 with the like effect as if she were unmarried.* 
 
 ' Acts 1893, sections i and 2 of chapter 3. 
 " Acts 1895, chap. 9, sec. 3. 
 
MARRIED WOMEN. 425 
 
 These acts of the legislature as to the creation of a married 
 woman's separate estate restore the law as enacted by the adop- 
 tion of the Code of 1868 and as carried into Warth's Edition of 
 1887.' 
 
 » The law governing the rights and liabilities of married women was 
 amended and re-enacted by the legislature in 1891, but making no material 
 changes as to the creation of their separate estate, nor as to what constitutes 
 such estate. The statute of 1891 is as follows: "The separate property, real 
 and personal, and the rents, issues, profits, and increase thereof, of a married 
 woman heretofore acquired under the laws of this state, or of any other state 
 or country, shall be and remain her sole and separate property in all respects 
 as if she were a single woman; and the same shall in no way be subject to 
 the control of her husband, nor liable for his debts. Any married woman 
 may take by inheritance, or by gift, grant, devise or bequest, and hold to 
 her sole and separate use; and convey and devise real and personal property, 
 and any interest or estate therein, and the rents, issues, increase, and profits 
 thereof, in the same manner and with like effect as if she were a single 
 woman, and the same shall in no way be subject to the control or disposal 
 of her husband, nor liable for his debts. And the acknowledgment of any 
 contract relating to or conveyance of real estate which is her sole and sepa- 
 rate property, or the rents, issues and profits thereof, or any interest or 
 estate therein, by a married woman shall be sufficient if taken in such a way 
 as would bind her if she were a single woman. But if any married woman, 
 directly or indirectly, acquire any property, real or personal, from her hus- 
 band, the same shall be subject to all the debts and liabilities of her husband 
 existing at the time she acquired the same, in the same manner and to the 
 same extent as if it had not been acquired by her; Provided, that no married 
 ■woman, unless she be living separate and apart from her husband, or unless 
 her husband be non com pos mentis, shall sell or convey her real estate un- 
 less her husband consent thereto by joining in the deed or other writing by 
 which the same is sold or conveyed. 
 
 The property, real and personal, and the rents, issues, increase and profits 
 thereof, of any female who may hereafter marry, and which she may own or 
 be entitled to at the time of her marriage, shall not be subject to the control 
 or disposal of her husband, nor liable for his debts, and the same shall be 
 and continue her sole and separate property, and may be used and disposed of 
 by her as if she were a single woman." (Code 1891, chap. 66, sees, i, 2, 3.) 
 It will be observed upon a comparison of these two statutes that section two 
 of the law as it now exists is almost literally and is substantially the same as 
 section three of the act of 1891; and that section three of the present law 
 is the same as section two of the Act of 1891, except that in the latter she 
 may acquire a separate property directly from any one, while under the 
 present law the provision is that she may acquire a separate estate from any 
 person other than her husband. The difference in the language of section 
 one under both statutes, so far as they relate to the creation of a separate 
 estate, is not such a difference as to the effect and operation of the two enact- 
 ments as to call for any comment or discussion of the subject. 
 
426 BQUITY PRINCIPLBS. 
 
 Before the enactment of the statute, the husband, by virtue of 
 his marital rights at common law, was entitled absolutely to all 
 his wife's personalty which came to his possession during the mar- 
 riage, unless his right thereto was restrained by the deed of the 
 wife before marriage or by the instrument settling the property 
 on her;' and to the rents, issues and profits of her real estate." 
 
 In the creation of a separate estate in a married woman, the 
 law requires no particular form of words or technical language;' 
 it is created, since tha enactment of our married woman's law, 
 simply by conveying the land to her, and, though it be not ex- 
 pressed to be for her sole and separate use, it will, nevertheless, 
 be regarded as her separate estate.* But, if it was conveyed to 
 her by deed directly, prior to the adoption of the Code of 1868 
 of this state, such conveyance does not create in her a separate 
 estate,'' 
 
 In conveyances of property made to a married woihan before 
 the adoption of our Code of 1868, it must appear therefrom that 
 it was intended to be held by her as her sole and separate estate.* 
 And where land has been conveyed directly to a wife during cov- 
 erture, before the enactment of our married woman's law, without 
 the intervention of a trustee, and it does not appear from the in- 
 strument of conveyance that it was intended for her sole and sep- 
 arate use, such conveyance will not vest in her a separate estate, 
 but will vest the husband with a life estate therein for the period 
 of the joint lives of the husband and wife.'' In such case the 
 marital rights of a husband attach at once to the land upon the 
 execution of the deed to the wife, and he thereby becomes entitled 
 to the possession of the land and the rents, issues and profits 
 thereof during the joint lives of himself and wife with his cur- 
 tesy therein after her death.* Property now acquired in our state 
 by a married woman from any person other than her husband is 
 
 " Coatney v. Hopkins, 14 W. Va. 338; Hill v. Wynn & Co., 4 W. Va. 453. 
 
 ' Kelly, Contr. Mar. Worn., \ 5, p. 109. 
 
 5 Pox V. Jones, 1 W. Va. 205; Coatney v. Hopkins, 14 W. Va. 338. 
 
 •< Radford v. Carwile, 13 W. Va. 574; Williamson v. Russell, 18 W. Va. 
 612. 
 
 5 Laidley v. Central Land Co;, 30 W. Va. 505; s. c. 4 S. E. Rep. 705; I^augh- 
 lin Bros. v. Fream, 14 W. Va. 322; Pickens v. Knisely, 36 W. Va. 794; s. c. 
 15 S. E. Rep. 997. 
 
 ' Laughlin Bros. v. Fream, supra. 
 
 1 Laidley v. Central Land Co., supra. » Pickens v. Kniseley, supra. 
 
MARRIED WOMBN. 427 
 
 her separate estate, though she purchase the same on credit and 
 pay for it out of the profits arising from its use by her, and though 
 when she purchased or acquired the property she had no separate 
 estate.' From the language of our married woman's act, it would 
 seem that a conveyance directly from the husband to the wife 
 would not create in her a separate estate within the meaning of 
 the law; but this statute is otherwise construed by our courts. It 
 is held that, while such a conveyance does not create a legal, that it 
 does create an equitable, separate estate,^ which will be upheld and 
 enforced in a court of equity,' and in right of which she may sue in a 
 court of law;* and at the death of the husband the title thus vested 
 in the wife is converted into a legal one, and may be asserted as such 
 in the courts of this state." It must not be thought that the mar- 
 ried woman's act is at all necessary to enable her to take and hold 
 a separate estate. This she could always do under our laws and 
 those of England.' But, before the passage of this statute, a 
 married woman's separate estate was never a legal estate, but was 
 purely equitable. So this law has changed her separate equitable 
 into a separate legal estate.' 
 
 This statute dispenses with the former essential methods of 
 creating a separate estate, vesting the whole estate, legal and 
 equitable, in her, subject to her control and disposition as if she 
 were unmarried.* 
 
 § 307. Contracts of married Avomen — 
 
 Our married woman's law was not designed to remove the dis- 
 ability of a married woman to make contracts generally, except 
 so far as they relate to her separate estate. If she has no sepa- 
 
 " TrapnelW. Conklyn, 37 W. Va. 242; s. c. 16 S. E. Rep. 570; Robinson v. 
 Neill, 34 W. Va. 128; s. c. 11 S. E. Rep. 999; Stewart v. Stout, 38 W. Va. 
 478; s. c. 18 S. E. Rep. 726. 
 
 " Cosner v. McCrum, 40 W. Va. 339; s. c. 21 S. E. Rep. 739; Fox v. Jones, 
 1 W. Va. 205; Humphrey v. Spencer, 36 W. Va. 11; s. c. 14 S. E. Rep. 410; 
 Robinson v. Woodford, 37 W. Va. 377; s. c. 16 S. E. Rep. 602; McKenzie v. 
 Railroad Co., 27 W. Va. 306; Miller v. Miller, 92 Va. 196; s. c. 23 S. E. Rep. 
 891; Hunter v. Strider's Adm'r, 41 W. Va. 321; s. c. 23 S. E. Rep. 567. 
 
 3 Cosner v. McCrum, supra. 
 
 < McKenzie v. Ohio River Railroad Co., 27 W. Va. 306; Clay v. City of St. 
 Albans, 43 W. Va. 539, 27 S. E. Rep. 368. 
 
 5 Hunter v. Strider's Adm'x, supra. ' Kelley, Contr. Mar. Worn., p. 109. 
 
 ' Opinion of court in Stockton v. Farley, 10 W. Va., at p. 174; Fuller & 
 Fuller Co. v. McHenry, 83 Wis. 573, 18 L. R. A. 512. 
 
 * Wells, Sep. Prop. Mar. Worn. 104. 
 
428 EQUITY PRINCIPI,ES. 
 
 rate estate with reference to which she may contract, she cannot 
 now enter into any personal obligation as if she were 2^ feme sole} 
 If she could do this it would be difficult to conceive of any dis- 
 ability that coverture could impose upon a woman. 
 
 But where she is possessed of a separate estate she is bound 
 by her contracts as to the creation of debts as if she were a 
 feme sole; and the debts for which her separate estate may be 
 made liable are those which arise from any transaction which 
 would bind her if she were unmarried except that her separate 
 estate is not bound by a bond or covenant based on no considera- 
 tion.'' The act of 1891 ' specified the instances and narrowed 
 the limits wherein she could enter into a contract binding her sep- 
 arate estate.* The law as it existed prior thereto did not enu- 
 merate the particular cases wherein a married woman could bind 
 her separate estate by a separate or joint contract or undertaking, 
 but left this to construction and the judgment of the courts. 
 Our courts in defining the extent of the liability of the separate 
 estate of a married woman to the payment of her contracts, held 
 that the corpus of her personalty and the rents, issues and profits 
 of her realty during coverture, were liable for the payment of 
 her debts; but that the corpus of her realty could not be disturbed, 
 except by voluntary lien created by deed in which her husband 
 must have joined or for the purchase-money of real estate pur- 
 chased by her.^ The law of 1893 ' ^o^& not limit the wife's power 
 
 ' Kckens v. Kniseley, 36 W. Va. 794; s. c. 15 S. E. Rep. 997; citing in sup- 
 port of this principle in the course of the opinion the following authorities: 
 Stockton V. Parley, 10 W. Va. 171; Carey v. Burruss, 20 W. Va. 574; White 
 V. Manufacturing Co., 29 W. Va. 385, i S. E. Rep. 572; i Minor Inst. 337; 
 I Rob. Prac. (New) 216; Kelley, Contr. Mar. Worn., § 6, c. 6. See also Pat- 
 ton V. Bank, 12 W. Va. 587; Radford v. Carwile, 13 W. Va. 607; Hughes v. 
 Hamilton, 19 W. Va. 394; Howe v. Stortz, 27 W. Va. 555. See for a dis- 
 cussion of the principle laid down in the text, Virginia Law Register, Vol. 3, 
 No. 9, pp. 635-644; Vol. 4, No. 7. pp. 418-422. 
 
 = Hughes V. Hamilton, 19 W. Va. 366; Williamson v. Cline, 40 W. Va. 194, 
 20 S. E. Pep. 917. 
 
 3 Repealed in 1893 by amendment and re-enactment. 
 
 * Code, chap. 66, sees. 11 and 12; Oney v. Ferguson, 41 W. Va. 568; s. c. 
 23 S. E. Rep. 710, 711. 
 
 s Radford et al. v. Carwile, 13 W. Va. 572; Hughes & Co. v. Hamilton, 19 
 W. Va. 366; Doges v. I,ee, 20 W. Va. 584; Camden v. Hiteshaw, 23 W. Va. 
 236. 
 
 ' Acts, 1893, ch. 3, sec. 12. 
 
MARRIBD WOMEN. 429 
 
 to contract, so that her status as to this matter is restored to what 
 it was prior to the act of 1891. Under the law as in force with 
 us, anterior to 1893, a contract concerning real estate could not 
 be specifically enforced against her,^ as she could do nothing 
 looking to the transfer of the title to her realty, except by deed 
 in which her husband had joined and which she had duly ac- 
 knowledged in the manner provided by law (and after privy ex- 
 amination when this was required) and upon delivery of such, 
 deed for recordation; and this whether the realty was a legal or 
 equitable separate estate.' And by the terms of our statute ' a mar- 
 ried woman is not bound by her covenants of warranty in a deed 
 executed by her conveying her real estate.* And this statute is- 
 still in force; so that a married woman's covenant of warranty 
 is not even now the subject of an action either at law or in equity. 
 In 1893 the legislature made some radical changes in the status 
 of a married woman as to her separate estate and her contractual 
 liabilities with reference thereto as that act is construed by our 
 supreme court.' But notwithstanding the revolution wrought by 
 this act, as to the remedies against a married woman upon her 
 contract, our supreme court expresses the opinion that in its scope 
 it does not "enlarge the woman's ability to contract, but only 
 the remedies upon the contracts binding her estate." * 
 
 This is also our own view of the effect of the last statute relat- 
 ing to the contractual powers and liabihties of a married woman 
 touching her own separate estate, it not being the intention of the 
 legislature by that act to entirely destroy the disabilities of cover- 
 ture, to incur civil liabilities upon personal contracts, but merely to 
 enlarge the remedies thereon and to remove former obstacles and 
 inconveniences incident to their enforcement; because, prior to 
 1893, ^s we have just seen,' she had full power to incur liability 
 with reference to her separate estate as if difeme sole, with the very 
 few exceptions already shown which still exist — these being her 
 nonliability to the specific performance of a contract for the sale 
 
 • Moore v. Sigon, 22 W. Va. 292. 
 
 ' Moore v. Sigon, supra; Cady v. Gale, 5 W. Va. 547. 
 3 Code, chap. 73, sec. 6. 
 
 * Sine V. Fox, 33 W. Va. 521; s. c. 11 S. E. Rep. 218; Bennett v. Pierce, 45 
 W. Va. 654, 31 S. E. Rep. 972. 
 
 5 Oney v. Ferguson, 41 W. Va. 568; s. c. 23 S. E. Rep. 710; Williamson 
 V. Cline, 40 W. Va. 194; s. c. 20 S. E. Rep. 917. 
 
 ' Opinion of Brannon, J., in Williamson v. Cline, supra, ''Ante, p. 428. 
 
430 EQUITY PRINCIPLES. 
 
 of her realty, upon a covenant of warranty, and upon a bond 
 given without consideration. 
 
 Another far-reaching effect of the act of 1893 upon the contract 
 of a married woman is its binding operation upon her separate 
 estate. Prior to this enactment, her contract was only enforce- 
 able against the estate of which she was the owner at the time the 
 contract was made,^ but this new statute will subject after-acquired 
 property of the wife to the payment of her debts as well as that 
 which she owned at the time.' Thus, we see that the act of 1893, 
 and which is now the law, did not increase the contracting powers 
 of a married woman with reference to her separate estate, as they 
 existed prior to the act of 1891, but merely enlarged the remedy 
 upon her contracts; in other words, simply gives her the full 
 status of afeme sole as to all the contracts which she can enter 
 into as to her separate estate with reference to their enforce- 
 ment. 
 
 § 307a. Contracts between husband and wrife — 
 
 Neither at common law nor under the enabling statutes can a 
 valid contract be made between husband and wife enforceable in 
 a legal form;' but in equity, it is otherwise, as in the latter 
 tribunal such contracts are valid and may there be enforced.* In 
 conformity to this principle, the wife may become the owner of 
 a note executed by her husband and enforce payment thereof;* or 
 become the creditor of her husband and secure the debt by a deed 
 of trust or mortgage upon his property.' In fact, she is entitled 
 to the same rights against her husbaild to which any other cred- 
 itor is entitled, except as to the remedy.' So, she may employ 
 him in her separate business, paying him a reasonable salary,' 
 which he may appropriate to the support of his family without 
 the wife being required to account therefor to the husband's 
 
 ' Pickens v. Knisely, 36 W. Va. 801; s. c. 15 S. E. Rep. 997; Ankeney v. 
 Hannon, 147 U. S. 128; s. c. 13 Sup. Ct. Rep. 206; Crockett v. Doriott, 85 
 Va. 240; s. c. 3 S. E. Rep. 128. 
 
 = Williamson v. Cline, supra. 
 
 3 Rodgers on Domestic Relations, § 205; Roseberry v. Roseberry, 27 W. Va. 
 759- 
 
 ■• Roseberry v. Roseberry, supra; Bennett v. Bennett, 37 W. Va. 396, 16 
 S. E. Rep. 640. 
 
 s Rodgers on Domestic Relations, ? 205. « Idem. 
 
 7 Righter v. Riley, 42 W. Va. 633, 26 S. E. Rep. 557. 
 
 ' Rodgers on Domestic Relations, § 212. 
 
MARRIED WOMEN. 43^ 
 
 ireditors.^ And, as we have already seen,* they may make a 
 valid contract between themselves for their separation. 
 
 § 308. The earnings of a married woman — 
 
 Our statute now provides that "the earnings of a married 
 woman, or any and all property, real and personal, purchased by 
 her with the proceeds of such earnings, shall, in all cases, be her 
 sole and separate property, and shall not be subject to the con- 
 trol or disposal of her husband, nor liable for his debts. ' ' ^ 
 
 In the absence of statute securing to a married woman her 
 earnings as her sole and separate estate, they belong to her hus- 
 band and may be subjected to the payment of his debts.* But 
 aside from this, in equity the husband might consent to the wife's 
 receiving her earnings, and they would be hers as against the in- 
 dividual claim of the husband, his devisees and distributees.* And 
 prior to the enactment of this statute (act of 1893, chap. 3, sec. 
 12), if a wife during coverture, while living with her husband, 
 invested her earnings in real estate and then made improvements 
 thereon, though made with her own separate estate, both the 
 realty and the improvements could be made liable to the payment of 
 the claims of the husband's creditors." But this harsh and unjust 
 rule has been abrogated by our statute above quoted.^ So that 
 now no part of the earnings of a married woman belong to her 
 liusband. But under such a statute as this, a wife is not entitled 
 to any compensation for services rendered to or for her husband 
 or family.' 
 
 § 309. Carrying on business by a married ^voman — 
 
 Our " Married Woman's Act" provides that a married woman 
 living separate and apart from her husband may, in her own 
 name, carry on trade or business; and the stock or property used 
 in such trade, and the issues and profits thereof, together with 
 her own earnings realized from such trade or business, or other- 
 Tvise, shall be her sole and separate property; and shall not be 
 
 ' Idem. ' Ante, \ 196a. ' Acts, 1893, chap. 3, sec. 12. 
 
 * Bailey v. Gardner, 31 W. Va. 94; s. c. 5 S. E. Rep. 634. 
 
 £ Bailey v. Gardner, supra; Jones v. Reid, 12 W. Va. 350. 
 
 ' Bailey v. Gardner, supra. 
 
 7 Board of Education v. Mitchell, 40 W. Va. 431; s. c. 21 S. E. Rep. 1017. 
 
 ■8 Larkia v. Woosley, 109 Ala. 258, 19 South. Rep. 520. 
 
432 EQUITY PRINCIPLES. 
 
 subject to the control of her husband nor liable for his debts.^ The 
 object of this statute (same as section thirteen, of chapter sixty-six, 
 Code, 1887) as declared by our court in construing it in a case de- 
 cided in 1892,' is to protect those unfortunate wives, separated from 
 their husbands, who embark in business on their own account, 
 even though it may be they are not the owners of a separate es- 
 tate and depend upon their own labor and earnings, to carry on 
 the business, from the claims and demands of their husbands 
 and those of their husbands' creditors; and further, to enable 
 them to contract in such business, in the absence of a separate 
 estate, their contracts in that respect (they having no separate 
 estate) being void — this statute was not designed to trench on the 
 right already existing of a married woman to use and enjoy the 
 profits of her separate estate, and by implication, her consequent 
 right and power to carry on business with reference thereto. 
 
 But now the earnings of a married woman are her separate es- 
 tate,^ and the reason for this statute has partially ceased to exist, 
 but probably its retention upon the statute books is a wise 
 measure, in that it removes all doubt as to the validity of her 
 contracts made in the course of her business engaged in by 
 her when living separate and apart from her husband, in 
 those cases where she is not the owner of a separate estate, 
 with reference to which she can make valid and binding con- 
 tracts. 
 
 Under our statute, as it existed in the Codes of 1868 and 1887, 
 it is held that while a married woman could not engage in trade 
 or business generally, as if she were a feme sole,'^ yet she might 
 employ her estate in business to which it is adapted, and also put 
 her labor and skill into such business, and that the profits de- 
 rived from such business would be her own separate estate and. 
 free from the claims of her husband and not liable to the pay- 
 ment of his debts." 
 
 In Miller v. Peck," our supreme coxurt, as early as 1881, held 
 that a married woman might engage in business for the purpose 
 of preserving and increasing her separate estate, although living 
 
 • Acts, 1893, chap. 3, sec. 14. 
 
 = Trapnell v. Conklyn, ^37 W. Va. 242; s. c. 16 S. E. Rep. 570, opinion of 
 court at page 573. 
 3 Ante, p. 431. 
 
 * Trapnell v. Conklyn, 37 W. Va. 242; s. c. 16 S. E. Rep. 570. 
 5 Trapnell v. Conklyn, supra. ' 18 W. Va. 75, 99. 
 
MARRIED WOMEN. 433 
 
 with her husband, and by trade, barter, or sale, change the char- 
 acter of her personal property without impairing her title to 
 the after-acquired property. And this case further holds that 
 such married woman may carry on business through her hus- 
 band as her agent.' It was also held, as early as 1867, by the 
 supreme court of Virginia, that a married woman having a sep- 
 arate estate may engage in trade on her separate account and 
 enter into partnership for that purpose by the consent of her hus- 
 band.' 
 
 But under our law as it existed in the Codes of 1868 and 1887, 
 a married woman could not engage in a partnership so as to 
 render her Uable at law on contracts made with reference thereto, 
 even though she did own a separate estate.' But this doctrine 
 was placed on the ground that she was in no case liable at law 
 on her contracts but only in equity. Under the act of 1891, 
 
 which was in force from day of , 1891, until February 
 
 16, 1893, she could carry on any trade or business in her o^Ti 
 name for her own use or benefit, but not by an agent, but could 
 not do so as a partner of any person, not even of her husband.* 
 And while engaged in separate business under the act of 1891, 
 a debt incurred by a married woman would not bind her separate 
 estate, other than that used in such business, unless it were by 
 writing executed, acknowledged and recorded as in section twelve 
 of that act is required.^ 
 
 An examination of the case of Oney v. Ferguson,* shows that 
 our supreme court construes the act of the legislature of 1893 so 
 as to make a married woman a. feme sole in all respects in dealing 
 with her separate estate, and Uable at law on her contracts made 
 since the passage of that act the same as if she were unmarried — 
 taking away former equity jurisdiction and requiring suits upon 
 such contracts to be brought at law, unless the suits are of such 
 a character as to give equity jurisdiction independent of the fact 
 of the defendant's being a married woman. So the conclusion, 
 in the absence of a construction of that act to the contrary, is ir- 
 resistible that a married woman living with her husband and 
 
 » Camden v. Hiteshaw, 23 W. Va. 236. See also Trapnell v. Conklyn, 
 supra. 
 ' Penn v. Whitehead, 17 Gratt. 503. ' Carey v. Bumess, 20 W. Va. 571. 
 ■* Code, 1891, chap. 66, sec. 13. 
 5 Oney v. Fergi^son, 41 W. Va. 568; s. c. 23 S. E. Rep. 710. « Idem. 
 
 28 
 
434 BQUITY PRINCIPLBS. 
 
 having a separate estate, may engage in business on her own ac- 
 count, since the act of 1893, ^^^ ^^Y likewise embark in partner- 
 ship business, either with her husband or a stranger, and be held 
 liable on contracts made in such business, not only as to the sepa- 
 rate estate owned at the time of the contract but property ac- 
 quired by her thereafter.* 
 
 She may also carry on business of any sort in her own name 
 under her own personal management and control,* or on her own 
 account through and by her husband as her agent;' but if in the 
 latter case, owing to his skill and labor, large profits accrue 
 therefrom, over and above the necessary expenses and indebted- 
 ness of the business, including the support of himself, wife and 
 family, a court of equity will justly apportion such profits between 
 his wife and his existing creditors.* 
 
 § 310. Insurance of married vroman on life of husband — 
 her patents for invention and her bank deposits — 
 
 Our statute provides that "it shall be lawful for any married 
 woman, by herself and in her name, or in the name of any third 
 person with her assent, as her trustee, to cause to be insured for -her 
 sole use the life of her husband, for any definite period, or for the 
 term of his natural life, and in case of her surviving her husband, 
 the sum or net amount of the insurance becoming due and payable 
 by the terms of the insurance shall be payable to her, and for her 
 own use, free from the claims of the representatives of her hus- 
 band or any of his creditors; but such exemption shall not apply 
 
 » Burney v. Savannah Grocery Co., 98 Ga. 711, 25 S. E. Rep. 915; New- 
 man V. Morris, 52 Miss. 402; Abbott v. Jackson, 43 Ark. 212; Suan v. Caffe, 
 122 N. Y. 308, 25 N. E. Rep. 488; Bennett v. Mattingly, no Ind. 197, 10 N. 
 E. Rep. 299; Plummer v. Lord, 5 Allen, 460; Dupuy v. Sheoh, 57 Iowa, 361; 
 Silvens v. Porter, 76 Pa. St. 448; Edwards v. Thomas, 66 Mo. 468, 481. 
 
 While there are many cases that announce a doctrine at variance with 
 that held by the author as embodied in the text, we are clearly of the 
 opinion that the latter is the sounder and better view of the subject under 
 our statute. See as to this question the note to Gilkerson-Sloss Commission 
 Co. V. Salinger, 16 L. R. A. 726. 
 
 = Farley V. Tillar, 81 Va. 275; Tiffany's Personal & Domestic Relations, in; 
 Grand Island Baking Co. v. Wright, 53 Neb. 574, 74 N. W. Rep. 82. 
 
 3 Miller v. Peck, 18 W. Va. 75; Robinson v. Niell, 34 W. Va. 128, 11 S. E. 
 Rep. 999. 
 
 * Boggess V. Richards, 39 W. Va; 567, 26 L. R. A. 537. See also note to 
 Mayers v. Kaiser, 21 L. R. A. 623, where the principle laid down in the text 
 is fully considered. 
 
MARRIED WOMEN. 435 
 
 where the amount of premium annually paid out of the funds or 
 property of the husband shall exceed one hundred and fifty dol- 
 lars.* The amount of the insurance may be made payable, in 
 case of the death of the wife before the decease of her husband, 
 to his or her children for their use, as shall be provided in the 
 policy of insurance, and to their guardian if under age." ^ And 
 "every married woman, being a resident of this state, who shall 
 receive a patent for her own invention, pursuant to the laws of 
 the United States, may hold and enjoy the same, and all the pro- 
 ceeds, benefits and profits thereof, and of such invention, to her 
 own and separate use, free and independent of her husband and 
 his creditors, and may transfer and dispose thereof, and in every 
 respect perform all acts in relation thereto, in the same manner 
 as if she were unmarried." ' This statute further provides ''that 
 when any deposit shall be made in any bank or institution by 
 any female, being or hereafter becoming a married woman, of 
 her own money, in her own name, it shall be proper for the offi- 
 cers of such bank or institution to pay such depositor such sum 
 as may be due such female; and the receipts or acquittances of 
 such depositor shall be sufficient legal discharge to the said bank 
 or institution therefor." * This enactment also makes it "lawful 
 for any married woman, a stockholder of any bank, insurance 
 company (other than mutual fire insurance companies), manufac- 
 turing company, or other institution incorporated under the laws 
 of this state, to vote at any election for directors and trustees, 
 by proxy or otherwise, in such company of which she may be a 
 stockholder.'" 
 
 §311. Property held or conveyed in trust for married 
 women — 
 
 Our statute now provides: ' 'Any person holding, or who may 
 hereafter hold, as trustee for any married woman, any real or 
 personal estate or other property, under any deed or conveyance 
 or otherwise, on the written request of such married woman, ac- 
 companied by a certificate of a judge of the circuit court of the 
 county wherein the property is situated, that he has examined 
 the condition and situation of the property, and made due in- 
 quiry into the capacity of such married woman to manage and 
 
 ' Acts, 1893, chap. 3, sec. 5. ' Idem, sec. 6. 3 Idem, sec. 7. 
 
 « Idem, sec. 8. s Idem, sec. 9. 
 
436 EQUITY PRINCIPI,ES. 
 
 control tlie same, may convey to such married woman, by deed 
 or otherwise, all or any portion of said property, or the rents, 
 issues and profits thereof, for her sole and separate use and 
 benefit."! 
 
 § 312. Marriage settlement deeds — 
 
 Where a contract or deed has been entered into between a man 
 and woman prior to their intended marriage, whereby each one 
 is to hold, own and control his or her own property after mar- 
 riage as if . the maririage had not taken place between them, and 
 they thereby "relinquish all claim, title and interest in each 
 other's property that might vest in them under the law," this 
 does not deprive either of them of his or her marital rights ac- 
 cruing each to the other after death. ^ 
 
 A deed or contract of marriage settlement will not divest the 
 marital rights of the husband to a greater extent than the terms of 
 the instrument clearly require.' But a husband may, by express 
 contract made in consideration of marriage, relinquish all his 
 rights or interest that would otherwise accrue to him in his wife's 
 estate after her death.* 
 
 § 313. The right of a married woman to dispose of her 
 property — 
 
 In defining the rights of a married woman as to the disposal 
 of her property, the first principle governing here is that when 
 she is holding her separate estate by deed or will prescribing a 
 particular mode of disposition, she cannot dispose of it in any 
 other manner than that prescribed by the instrument creating 
 it.* But a restraint upon the power of disposing of a married 
 woman's separate estate will not be implied from her being au- 
 thorized to dispose of it in a specified manner by the instrument 
 of its creation, unless such restraint is either express or so clearly 
 indicated as to be the equivalent of an express restraint. ° A 
 married woman possesses an unqualified power to sell, grant and 
 transfer her separate personal property as if she were a single 
 
 ' Idem, sec. 4. = Beard v. Beard, 22 W. Va. 130. 3 Idem. 
 
 * Idem, at p. 138. See ante, §? 195, 196. 
 
 i McClintic v. Ocheltree, 4 W. Va. 249; Patton v. Bank, 12 W. Va. 587; 
 Radford v. Carwile, 13 W. Va. 572. 
 
 ' Radford v. Carwile, supra; Hughes v. Hamilton, 19 W. Va. 366; Price 
 V. Planter's Nat. Bank, 92 Va. 468; s. c. 23 S. E. Rep. 887. 
 
MARRIED WOMEN. 437 
 
 woman, without any reference to her husband or without his 
 joining with her in the act of disposition.^ But as to her sepa- 
 rate real estate, a married woman cannot sell and transfer it by 
 deed or other writing when she is not living separate and apart 
 from her husband, unless her husband join with her in the in- 
 strument of conveyance.^ And as a deed of trust or mortgage 
 operates to convey or transfer the legal title to her real estate, 
 she can only create an instrument of this sort so as to convey the 
 corpus of her real estate in the same manner in which she can 
 execute an ordinary deed therefor.' And prior to the enactment 
 of the law of 1891, a married woman could not convey her real 
 estate or execute a valid deed of trust or mortgage thereon, .ex- 
 cept after a privy examination of her in the manner then pre- 
 scribed by statute.* Under the law as it now exists, the privy 
 examination of a married woman is dispensed with in order to con- 
 vey the title to her real estate; so that all that is required now 
 to convey the wife's separate real estate is that her husband unite 
 with her in the conveyance, unless she be living separate and 
 apart from her husband, in which latter case she may make such 
 conveyance alone. ^ Where a married woman's real estate is held 
 by a trustee with the power to sell and convey in a certain speci- 
 fied mode or manner, and the mode prescribed is pursued by the 
 trustee, in making the conveyance, such trustee may transfer the 
 title of the married woman's real estate, and it is not necessary 
 that she join in the conveyance.' 
 
 A deed made by a married woman living separate and apart 
 from her husband must recite that fact, as also that the land is 
 her sole and separate estate; otherwise the deed is void. ^ And 
 the certificate of acknowledgment thereto must state that it has 
 been proven to the satisfaction of the officer taking the acknowl- 
 edgment, that the real estate is the sole and separate property 
 
 ' Osborne v. Glasscock, 39 W. Va. 749; s. c. 20 S. E. Rep. 702; Patton v. 
 Bank, 12 W. Va. 587. 
 
 '' Acts, 1891, chap. 3, sec. 3; Patton v. Bank, 12 W. Va. 587; Hughes v. 
 Hamilton, 19 W. Va. 366. 
 
 3 Hughes V. Hamilton, supra; McMuUen v. Eagen, 21 W. Va. 234. 
 
 •• Laidley v. Knight, 23 W. Va. 735; Central Land Co. v. Laidley, 32 W. 
 Va. 134; s. c. 9 S. E. Rep. 61. 
 
 5 As to acknowledgment of deeds by married women for the purpose of ad- 
 mitting same to record, see Code, 1891, chap. 73, sec. 4. 
 
 ' Norvell v. Hedrick, 21 W. Va. 523. 
 
 ? Bennett v. Pierce, 45 W. Va. 654; s. c. 31 S. E. Rep. 972. 
 
438 BQUITY PRINCIPLES. 
 
 of the woman, and that she was at the date of the deed, and still 
 is at the date of the certificate, living separate and apart from 
 her husband; and if this is not done, the deed is likewise void.^ 
 
 § 314. Suits by and against a married Avoman — 
 
 Under the law of this state, since the enactment of our married 
 woman's law, a married woman could be sued in a common law 
 court on contracts entered into by her, when living separate and 
 apart from her husband, whether she had any separate estate 
 when she made the contract or not.^ But where the husband and 
 wife were living together no action at law could be maintained on 
 her contracts against her prior to the enactment of the statute of 
 1893.' In all cases on contract against a married woman prior to 
 the enactment of our statute of 1893, t^^ suit had to be brought 
 in a court of equity/ A judgment at law against a married 
 woman upon a contract made by her prior to the enactment of 
 our statute of 1893, is absolutely void and can be attacked col- 
 laterally." But now, on all contracts made since the amendment 
 and re-enactment of the married woman's law of 1893, a married 
 woman may be sued in a court of law for a legal demand, and 
 there is no longer jurisdiction in equity to charge her separate 
 estate, as before the act, for such legal demand. If the demand, 
 however, be of an equitable character, so as to warrant equity 
 jurisdiction in the case of a feme sole, there would be jurisdiction 
 in equity against such separate estate." So, too, if the contract 
 was made prior to the enactment of the law of 1893, ^'^ suit to 
 enforce the same must still be brought in a court of equity.' And 
 the contract of a married woman, made since the enactment of 
 chapter three, acts 1893, such as binds her separate estate, may 
 
 ' Idem. ' Peck v. Marling, 22 W. Va. 708. 
 
 3 Stockton V. Farley, 10 W. Va. 171; Carey v. Burrus, 20 W. Va. 571; 
 Tavener v. Barrett, 21 W. Va. 656; Nick v. Dawson, 42 W. Va. 43, 24 S. E. 
 Rep. 587- 
 
 ■• Dulin V. McCaw, 39 W. Va. 721; s. c. 20 S. E. Rep. 681; Hughes v. 
 Hamilton, 19 W. Va. 366; Thorn v. Sprouse, 39 W. Va. 706; s. c. 20 S. E. 
 Rep. 676; White v. Foote Lumber and Manufacturing Co., 29 W. Va. 385; s. 
 c. I S. E. Rep. 572. 
 
 5 White V. Foote Lumber and Manufacturing Co., supra; Thorn v. Sprouse, 
 39 W. Va. 706; s. c. 2G S. E. Rep. 676. 
 
 « Oney v. Ferguson, 41 W. Va. 568; s. c. 23 S. E. Rep. 710; Williamson v. 
 Cline, 40 W. Va. 194; s. c. 20 S. E. Rep. 917. 
 
 ' Rogers v. Lynch, 44 W. Va. 94; 29 S. E. Rep. 507. 
 
MARRIED WOMEN. 439 
 
 be enforced against her separate estate, whether owned by her at 
 the time of the cxintract or afterwards acquired, the same as if 
 she were a feme sole} But in the absence of this statute, as al- 
 ready stated,' the contract of a married woman can only be enforced 
 against the separate estate which she held at the time the con- 
 tract was made.' 
 
 A married woman may sue and be sued without joining her 
 husband in any action where the suit concerns her separate 
 estate; * or, if she elects to do so, she may join her husband with 
 her.' 
 
 ' Williamson v. Qine, supra. = Ante, ? 306. 
 
 3 Filler V. Tyler, 91 Va. 458; s. c. 22 S. E. Rep. 235; Hogg v. Dower, 36 
 W. Va. 200; s. c. 14 S. E. Rep. 995. 
 
 * McKenzie v. Ohio River Railroad Co., 27 W. Va. 306; Matthews v. 
 Greer, 21 W. Va. 694; Rader v. Neal, 13 W. Va. 373. 
 
 s Clay V. City of St. Albans, 43 W. V. 539, 27 S. E. Rep. 368. 
 
440 EQUITY PRINCIPI,ES. 
 
 CHAPTER XXVIII. 
 THE MARSHALING OF ASSETS AND SECURITIES. 
 
 ? 315. What is meant by the marshaling of assets. 
 
 316. The limitation of the doctrine of marshaling of assets. 
 
 317. Instances wherein the doctrine of marshaling of assets and securities 
 
 is applied. 
 
 § 315. W^hat is meant by the marshaling of assets — 
 
 ' 'The principle of marshaUng assets, in general terms, declares 
 that a creditor who has two funds open to him, while another 
 creditor has but one, should not take the latter fund without 
 placing the fund within his reach at the disposal of the creditor 
 whom he has deprived of the means of payment; and, if he neg- 
 lects or refuses to fulfill this duty, it may be enforced by a decree 
 of subrogation; that is, after the creditor of two funds has ex- 
 hausted the fund of the creditor of one fund, leaving the other 
 unpaid. " ^ ' 'And when, before any action has been taken, a court 
 of equity is called upon to act with all the parties before it, it 
 will enforce the principle that when a creditor has a lien on two 
 funds for the same debt, and another creditor has a subsequent 
 lien on one of the funds only, equity will require the former to 
 resort, in the first instance, to the fund upon which the subse- 
 quent creditor has no lien. ' ' '^ 
 
 ' Brannon, J., in Ball v. Setzer, 33 W. Va. 444, 446; s. c. lo S. E. Rep. 798, 
 citing Hawkins v. Ward, 30 W. Va. 204, 3 S. E. Rep. 600; Alston v. Mun- 
 ford, I Brock. 266; Aldrich v. Cooper, 2 I^ead. Cas. Eq., p. 255. 
 
 " Brannon, J., in Ball v. Setzer, supra, citing, in addition to the authorities 
 already mentioned, the following: 3 Pom., Eq. Jur., § 1414; i Story, Eq. Jur., 
 g 633; Bank v. Wilson, 25 W. Va. 243. The doctrine of marshaling Eissets is 
 applied as a means of adjusting, according to equitable principles, the claims 
 of two creditors upon the same debtor in cases where one creditor has, as se- 
 curity for the debt, a lien upon two funds of his debtor and the other has a 
 lien upon but one. In such cases, upon the settlement of the claims, equity 
 insists that the favored creditor shall, in seeking the satisfaction of his debt, 
 exhaust the security which is exclusively his before resorting to that which 
 he shares with the other, in order that, if possible, both claims may be paid. 
 See, also, Hudson v. Dismukes, 77 Va. 242. 
 
THB MARSHALING OF ASSETS AND SECURITIES. 44 1 
 
 § 316. The limitation of the doctrine of marshaling of 
 assets — 
 
 The doctrine of marshaling must not be enforced to the preju- 
 dice of a third party,' it being a well-settled principle that, where 
 both parties have an equal claim to the consideration of a chan- 
 cellor, the law will be suffered to take its course.'' 
 
 ' 'It will not be applied so as to delay the prior creditor or pre- 
 vent him from reaUzing his whole debt, or where it would, for 
 any reason, work injustice to such creditor.' ... A prior 
 creditor will not be compelled, under this doctrine, to litigate his 
 claim; nor, in order to leave the second fund intact for the benefit 
 of the junior creditor, to pursue the fund upon which he has the 
 exclusive lien into another jurisdiction." * 
 
 This doctrine is only applicable where there is the same com- 
 mon debtor to both parties, and there are claims or charges upon 
 both ftmds.* 
 
 To illustrate: If there are two judgment creditors, and the 
 first has a judgment against A. and B. and the second against B. 
 only, the latter cannot compel the former to take the land of A. 
 only; it not appearing whether A. or B. ought to pay the debt 
 due the first creditor, nor any equitable right shown in B. to 
 have the debt charged on A. alone.* 
 
 § 317. Instances wrherein the doctrine of marshaling of 
 assets and securities is applied — 
 As a deduction from the general rule, the doctrine of marshal- 
 ing assets is not only applied against the debtor, but against his 
 judgment creditors, in cases where their liens are subsequent to 
 that of the creditor in favor of whom the apphcation is made;^ 
 also to partnership cases forcing the firm creditors to resort to 
 the firm or partnership property for the payment of their claims 
 before proceeding to subject the individual property of the part- 
 ners to the satisfaction of their demands;* to the cases of mort- 
 gages, as where two mortgagees have mortgage liens upon the 
 same piece of land, and one of them has other or additional se- 
 
 '•McClaskey & Crim v. O'Brien, i5 W. Va. 792. "Idem. 
 
 3 2 Beach, Mod. Eq. Jur., § 782; Woolcocks v. Hart, i Paige (N. Y.) 184. 
 
 'Idem. 5 Idem, § 783. 
 
 * Dorr V. Shaw, 4 John. Ch. 16, L. ed., Bk. i, page 748. 
 
 7 2 Beach, Eq. Jur., ? 785. ' Idem, ? 787. 
 
442 BQUITY PRINCIPLES. 
 
 curity for his debt, and the mortgaged property is not sufficient 
 to pay both, the latter must satisfy his claim out of his security 
 as far as it will go before he will be allowed to resort to the land 
 embraced in the mortgage.^ And when one creditor holds a 
 mortgage on two pieces of property, and another holds a mort- 
 gage against only one of them, in order that equity may prevail 
 in the adjustment of their rights, the former must satisfy his 
 debt, if possible, out of that property not affected by the latter' s 
 mortgage." So, also, where a surety has mortgaged his lands 
 and the principal debtor has done likewise, the security may re- 
 quire the debt to be satisfied out of the mortgaged property of 
 the latter, his own mortgage being called for only in case of ne- 
 cessity thereafter.' But where a part of mortgaged property 
 primarily liable has been released by the mortgagee, who has 
 knowledge of the subsequent alienation of the various parts, he 
 must, before he can impose a lien upon the parts not released, 
 deduct the value of that so released by him.* 
 
 "The doctrine often finds a field for application in the relation 
 of cosureties with each other, as when one surety takes from his 
 principal a mortgage to secure him on a principal debt, in which 
 case his cosureties may force him to apply the security to the 
 debt which they have jointly guaranteed, and he cannot make 
 other use of it. This is true wherever security has been taken 
 by one surety from the principal debtor for his individual benefit, 
 and the cosureties are entitled to the privileges, even though the 
 debtor intended to give it to the individual alone. A surety may 
 also claim the right to have the securities given by the principal 
 debtor to a creditor marshaled so as_^to give him the benefit of the 
 surplus remaining after the payment of the debt by him; as 
 when such surety has given to a creditor security for several 
 loans, the surety, though he may be liable upon but one, is enti- 
 tled, when he has discharged the liability, to the benefit of the 
 balance of the security remaining after the whole has been paid. 
 On the other hand, creditors may, in certain cases, have assets 
 marshaled as against sureties on debts due them. So, when a 
 creditor holds certain notes, one of which is indorsed, made by 
 the same person, from whom he receives a certain sum of money, 
 he may apply this sum, in the absence of any direction to the 
 contrary, to the payment of one of the notes not indorsed, and 
 
 ' Idem, ? 789. ' Idem. ' Idem. * Idem. 
 
THB MARSHALING OF ASSETS AND SECURITIBS. 443 
 
 Still hold the indorsers as sureties on the one so indorsed by 
 them.'" 
 
 The principle obtains in the case of legatees, when the fund 
 designated for the payment of their legacies has been disposed of 
 in relieving the real estate of incumbrances or liens." 
 
 To this head may be referred the principle that, when the 
 owner of land consisting of different parcels or of one main 
 tract, which is subject to liens or incumbrances, aUenates the 
 same at different times or in different lots, the land must be sub- 
 jected to the payment of the liens in the inverse order of their 
 alienation.' 
 
 Our statutes provides: "Where land liable to the hen of a 
 judgement is more than sufficient to satisfy the same, and it, or 
 any part of it, has been aliened, as between the alienees for 
 value, that which was aliened last shall, in equity, be first liable, 
 and so on with other successive alienations until the whole judg- 
 ment is satisfied. And as between alienees who are volunteers 
 under such debtor, the same rule as to the order of liability shall 
 prevail. But any part of such real estate retained by the debtor 
 himself shall be first liable to the satisfaction of the judgment." * 
 
 ' Idem, I 790. " Idem, § 792. 3 Idem, § 795; Code, 1891, chap. 13, sec. 8. 
 
 * Code, chap. 139, sec. 8. See the following cases, wherein the above pro- 
 visions of the Code have been construed and applied: Hutton v. Lockridge, 
 22 W. Va. 159; Renick v. Lndington, 20 W. Va. 511, 566; McClaskeySc Crim 
 V. O'Brien, 16 W. Va. 791; Gracey v. Meyers, 15 W. Va. 194; Renick v. 
 Ludington, 14 W. Va. 367; Handley v. Lydenstriker, 4 W. Va. 605. 
 
444 BQUITY PRINCIPLBS. 
 
 CHAPTER XXIX. 
 THE MAXIMS OF EQUITY. 
 
 J 318. The extent and classification of maxims in equity. 
 
 319. Equity will not by reason of a mere technical defect, suffer a wrong- 
 
 to be without a remedy. 
 
 320. Equity follows the law. 
 
 . 321. Where there are equal equities the first in time will prevail. 
 
 322. Where there is equal equity the law must prevail. 
 
 323. He who seeks equity must do equity. 
 
 324. He who comes into equity must come with clean hands. 
 
 325. Equity aids the vigilant. 
 
 326. Equality is equity. 
 
 327. Equity looks rather to the intent than to the form. 
 
 328. Equity looks on that as done, which in good conscience ought tcy 
 
 be done. 
 
 329. Equity imputes an intention to fulfill an obligation. 
 
 330. Equity acts in personam. 
 
 331. Equity acts specifically. 
 
 332. Other maxims — a right of action cannot arise out of fraud. 
 
 333. Where both parties are equally in fault the condition of the defend- 
 
 ant is preferable. 
 
 334. A simple recommendation does not bind. 
 
 335. Fraud and deceit should excuse no man. 
 
 336. Ignorance of the law excuses no one. 
 
 § 318. The extent and classification of maxims in equity — 
 
 The maxims of equity are the life of its system of remedial 
 justice,' and a common element of eqtiity pervades each of the 
 maxims which sometimes gives them the appearance of running 
 into each other, but with a little practice they are readily distin- 
 guishable; and it is highly necessary to keep the distinctions be- 
 tween them clear.' We have, therefore, treated each maxim sep- 
 arately and accompanied its exposition with a separate illus- 
 tration. 
 
 ■ Kemper v. Campbell, 41 Ohio St. 210; Gavin v. Curtin, 171 111. 640, 40 L. 
 R. A. 776, 779. 
 ' Snell's Prin. Eq. 15- 
 
THE MAXIMS OF EQUITY. 445 
 
 The maxims properly belonging to equity, according to a very 
 respectable authority/ are the following: 
 
 (i) Equity will not, by means of merely technical defects suf- 
 fer a wrong to be without a remedy. 
 
 (2) Equity follows the law. — Aequitus sequitur legem. 
 
 (3) Where there are equal equities, the first in time shall 
 prevail. — Prior tempore; potior jure. 
 
 (4) Where there is equal equity the law must prevail. 
 
 (5) He who seeks equity must do equity. 
 
 (6) He who comes into equity must come with clean hands. 
 
 (7) Equity aids the vigilant — Vigilantibus non dormientibus 
 aequitus subvenet. 
 
 (8) Equality is equity. 
 
 (9) Equity looks to the intent rather than the form. 
 
 (10) Equity looks on that as done which in good conscience 
 ought to be done. 
 
 (11) Equity imputes an intention to fulfill an obligation. 
 
 (12) Equity acts in personam. 
 
 (13) Equity acts specifically. 
 
 In addition to these leading maxims taken from Mr. Snell's 
 treatise, the following may be appropriately given and illustrated: 
 
 {a) Ex dolo malo non oritur actio. — A right of action cannot 
 arise out of fraud. 
 
 (6) In pari delicto potior est conditio defendentis. — Where both 
 parties are equally in the fault, the condition of the defendant is 
 preferable. 
 
 (c) Simplex commendatio non obligat. — A simple recommenda- 
 tion does not bind. 
 
 {d) Fraus et dolus nemini patrocinari, debent. — Fraud and de- 
 ceit should excuse no man. 
 
 (^) Ignorantia legis neminem excusat. — Ignorance of the law 
 excuses no one. 
 
 § 319. Equity ^vill not by reason of a merely technical 
 defect suffer a •wrong to be without a remedy — 
 
 While this maxim is not absolutely true,* yet it forms the root 
 of all equitable decisions,' and is at the foundation of a large 
 
 ' Snell's Prin. Eq. 15. 
 
 " Opinion of court in National Tradesmen's Bank v. Wetmore, 124 N. Y. 
 241; s. c. 26 N. E. Rep., at p. 550. 
 3 Northern Pac. R. Co. v. Hussey, 9 C. C. A. (U. S.), at p. 468. 
 
446 EQUITY PRINCIPtBS. 
 
 proportion of equity jurisprudence so far as that jurisprudence 
 aims at supplying the defects which at one time existed in the 
 common law;^ but since equity has molded itself into a system 
 of definite rules and principles, its jurisdiction does not depend 
 so much on the non-existence of a remedy at law, as on the ques- 
 tion whether its established principles will warrant the granting 
 of the relief sought." 
 
 Though equity adheres to its established rules and principles 
 and follows precedent in awarding relief, still the absence of pre- 
 cedent is not a sufficient reason for denying the existence of 
 equitable jurisdiction,' inasmuch as equity will take jurisdiction 
 in all cases where a right recognized by municipal law exists, 
 and courts of law do not provide an adequate remedy for the en- 
 forcement, maintenance and protection of that right.* Thus, 
 equity will interpose to protect an unproductive life estate and 
 remainder of great value created by will which is liable to be 
 lost through the inability of the life tenant to pay the taxes by 
 directing the sale of such estate, though it was the testator's in- 
 tention that it should not be sold." 
 
 It is a well-settled and favorite doctrine of a court of equity, 
 that when it takes jurisdiction for one purpose, it will retain the 
 cause and dispose of all the questions involved, and thus afford 
 the plaintiff complete relief.' For instance, if suit be brought 
 for the specific performance of a contract, and the case made en- 
 titles the plaintiff to relief, as auxiliary to its authority to decree 
 specific performance, the court may award damages for the 
 breach of the contract, to be assessed either by an issue of 
 quantum damnificatus, or by a master, at its discretion,' though 
 of a question of damages pure and simple, it has no jurisdiction 
 except as conferred by statute.' But, notwithstanding the ex- 
 tent of the application of this maxim, it must not be under- 
 
 ' Snell's Prin. Eq. i6; Gavin v. Curtin, 171 111. 640, 40 I,. R. A. 776, 779. 
 
 ' Fetter on Bquity, 20. 
 
 3 Gavin v. Curtin, 171 111. 640, 40 L. R. A. 776. 
 
 * Gavin v. Curtin, supra. 5 Idem. 
 
 « Yates V. Stuart, 39 W. Va. 124, 19 S. E. Rep. 423; Hanly v. Waterson, 39 
 W. Va. 214, 19 S. E. Rep. 536; Grubb v. Sharkey, 90 Va. 831, 20 S. E. 
 Rep. 784; Livey v. Winton, 30 W. Va. 554, 4 S. E. Rep. 451; Beecher v. 
 Lewis, 84 Va. 630, 6 S. E. Rep. 367; Rison v. Moon, 91 Va. 384, 22 S. E. Rep. 
 165; Hotchkiss V. Fitzgerald, 41 W. Va. 357, 23 S. E. Rep. 576. 
 
 7 Grubb V. Sharkey, supra. ' Ante, \ 3. 
 
THE MAXIMS OF EQUITY. 447 
 
 Stood that equity will take cognizance of those matters which 
 impose a mere moral obligation and for which a person is only 
 answerable in the forum of conscience.^ The right which a court 
 of equity will enforce is one which is recognized by municipal 
 law.' Nor will equity take cognizance of a cause in which the 
 amount in controversy is very small.' But for the wrongful in- 
 vasion of another's property, without reference to the extent of the 
 injury, the law never denies the right to maintain an action.* 
 
 § 320. Equity follo\vs the law — 
 
 This maxim imports that in deaUng with legal rights, equity 
 adopts the rules of law, and that in dealing with equitable 
 estates the court appUes to them the same rules which govern 
 legal estates.' Thus, as we have seen,* equity applies the statute 
 of limitations to purely legal demands by analogy to the courts 
 of law, when the lapse of time operates as a bar to the claim. 
 So, as a general rule, where the court of chancery is adjusting 
 the mutual rights between the occupier of land, who has made 
 improvements under the belief that he had a just claim, and the 
 real owner of the land, it will adopt the rule obtaining in actions 
 of ejectment, and will estimate against the occupant the annual 
 value of such part of the premises, if any, as was improved, and 
 in a state fit and prepared for cultivation at the time he took 
 possession of the land, and will credit him with the value of all 
 improvements made thereon; but will not charge him for the use 
 of any improvements made upon the land by him, or for the use 
 of any part of the land cleared by him.^ 
 
 § 321. \Vhere there are equal equities, the first in time 
 will prevail — 
 
 The meaning of this maxim is that where the rights of the 
 parties are founded in mere equities and that there is no differ- 
 ence so far as these equities are concerned, that the court will 
 determine the respective rights of the parties by the rule that 
 time gives the better and stronger right; or, in other words, the 
 older equity shall prevail.' 
 
 " Bispham's Priac. Eq. 59. " Idem. Idem, 64. 
 
 < Wartman v. Swindell, 54 N. J. L. 589, 18 L. R. A. 44. 
 5 I Beach, Mod. Eq. Jur., ? 10. * Ante, I 298. 
 
 7 Fishback v. Ball, 34 W. Va. 644, 12 S. E. Rep. 856. 
 * Fetter on Equity, 36; i Beach, Mod. Eq. Jur., ? 12. 
 
448 EQUITY PRINCIPI,ES. 
 
 Thus, where neither of the parties to a controversy about the 
 title to a tract of land has obtained the legal title thereto, but 
 their titles are both purely equitable, and emanate from the same 
 source, and each party is equally innocent, and each has been 
 equally diligent, he who has the elder equity must receive the 
 legal title.-' 
 
 So as between unrecorded deeds or mortgages, the one first 
 executed is entitled to priority, since the equities of the instru- 
 ments in other respects are equal;' but, as against a voluntary 
 conveyance, a subsequent purchaser for value without notice has 
 the superior equity, and is entitled to priority.' 
 
 § 322. Where there is equal equity the law must prevail — 
 
 The meaning of this maxim is that whenever both parties are 
 entitled to the protection or aid of a court of equity, and one of 
 them, in addition to his equitable rights, obtains the legal title to 
 the subject-matter in controversy, equity will not interpose to 
 grant relief , but leaves the matter to rest upon the legal title.* 
 Thus where a purchaser of land for a valuable consideration, 
 without notice of a prior equitable right, obtains the legal title 
 at the time of his purchase, or before he has notice of such 
 prior equity, he is, both in a court of law and equity, entitled to 
 , priority and he is always preferred to him who holds the mere 
 equitable title.* But notice of a prior equity, given at any time 
 before the completion of the purchase, will invalidate all steps 
 which may be thereafter taken to complete it, yet on the other 
 hand, when it is once completed, and the character of a bona fide 
 purchaser is acquired, notice will not be a bar to any future 
 
 ' Camden v. Harris, 15 W. Va. 554. The authorities abundantly show 
 that, for the purpose of settling conflicting claims and titles, the hours of 
 the day when the conveyances to the several claimants were made may be 
 shown. In other words, in the application of the maxim. Qui prior, est 
 tempore, potior est jure, it may always be shown upon what day, or at what 
 hour of the day, the deeds or mortgages out of which the conflicting claims 
 arose were executed. 
 
 = Fetter on Equity, 36. • 
 
 3 Idem. 
 
 * Fetter on Equity, 35; Bispham's Princ. Eq. 66. 
 
 5 Hoult V. Donahue, 21 W. Va. 294, 300. 
 
THS MAXIMS OF EQUITY. 449 
 
 Steps necessary for protecting and securing what he has already- 
 purchased.^ 
 
 § 323. He who seeks equity must do equity — 
 
 It is one of the elementary rules of all equity suits recognized 
 and followed by the court of chancery, that he who seeks equit- 
 able relief must show that he has done or offered to do, in the 
 premises, all that equity requires of him.^ But this rule em- 
 braces, and applies only to,' the one matter, which is the subject 
 of suit, and not to distinct transactions, having no proper rela- 
 lation to, nor connection with, the subject matter of the action. 
 The plaintiff must submit to the condition that all correspond- 
 ing equities of the character above named in favor of the de- 
 fendant, growing out of the subject matter involved in the litiga- 
 tion, may be fully and finally adjusted.* 
 
 The reports of adjudged cases abound in decisions illustrative 
 of this maxim. A very familiar instance of the application of 
 this rule is that wherein the courts forbid a tax sale to be set 
 aside and the deed made to the purchaser who has paid the taxes 
 due from the owner of the land, canceled, until the money ex- 
 pended in the payment of the taxes with its interest has been 
 first tendered to the purchaser of the property.* 
 
 A further illustration of this maxim is the case of a plaintiff 
 who seeks to have a conveyance in form an absolute deed de- 
 clared to be but a mortgage given for the security of a loan of 
 money. The relief will only be granted on the condition that 
 the plaintiff pay the grantee the amount of the loan, with the 
 interest, justly due him.^ So where a party seeks the cancella- 
 tion of a note in which a fraudulent date has been inserted, 
 which makes it mature sooner than the maker intended, relief 
 will be denied where there is no offer to execute a new note con- 
 taining the date mutually agreed upon by the parties at the time 
 
 ' Hoult V. Donahue, 21 W. Va. 294, 300. 
 
 = Jones V. Ewing, 107 Ind. 313; s. c. 6 N. E. Rep. 819, 821; Otis v. Greg- 
 ory, III Ind. 504; s. c. 13 N. E. Rep. 39, 40, 41; Plum v. City of Kansas, loi 
 Mo. 525, 10 L. R- A. 371; I Beach, Mod. Eq. Jur., ? 13. 
 
 ' Otiv V. Gregory, supra, citing Tuthill v. Morris, 81 N. Y. 94-100. 
 
 * Rowe V. Peabody, 102 Ind. 198; s. c. i N. E. Rep. 353; ante, i 60, under 
 chapter on Cancellation of Written Instruments. 
 
 s Kemper v. Campbell, 44 Ohio St. •».io, 6 N. E. Rep. 566. 
 
450 EQUITY PRINCIPI,ES. 
 
 of the execution of tlie note sought to be canceled.' This 
 maxim applies to the defendant as well as to the plaintiff; and 
 one who seeks to avail himself of an equitable defense must ob- 
 serve this principle as if he were in the attitude of a plaintiff im 
 a suit.' 
 
 § 324. He who comes into equity must come vrith deaa 
 hands — ' 
 
 The doors of a court of equity are not open to him who seek* 
 to enter with unclean hands.' A very frequent application of 
 this rule is found in the case of a person seeking to recover prop- 
 erty conveyed by him to another person upon a secret trust for 
 the purpose of defrauding his creditors, in which case it is held, 
 that equity will give him no aid.* So equity will not aid a cor- 
 poration to suppress for its benefit a competition that has arisen 
 from its own neglect of its charter duty." The rule is confined, 
 however, to the conduct of the party in the matter before the 
 court, and not to matters aliunde.' Courts of equity, as well as 
 courts of law, will not refuse redress to the suitor because his 
 conduct in other matters not then before the court may not be 
 blameless. It is enough if the suitor shows that he has acted 
 justly, fairly and legally in the subject-matter of the suit.' 
 
 Under the force of this maxim a party cannot invoke the aid 
 of a court of equity to enforce a contract which is opposed to 
 public policy.' So where two persons enter into a scheme to pre- 
 vent competitive bidding at a judicial sale of land which other& 
 are interested in having sold for a fair price, and one of such 
 persons purchases the land, and takes the title in his own name, 
 the sale will not be set aside at the instance of the other on the 
 ground that he was prevented from bidding by the promises of 
 the purchaser." And one who is guilty of fraud in the transac- 
 tion on which he asks subrogation, as where a second purchaser 
 
 ' Norris V. Scott (Ind. App.), 32 N. E. Rep. 103. 
 
 ' Bispham's Prin. Eq. 70. 
 
 3 Medford v. Levy, 31 W. Va. 649; s. c. 2 L. R. A. 368; Bates v. Swigler, 
 40 W. Va. 420; s. c. 21 S. E. Rep. 874; Bank of New Hanover v. Adrian, 116- 
 N. C. 537; s. c. 21 S. E. Rep. 792; Pitman v. Pitman, 11 L. R. A. 458, note; 
 Yale Gas Stove Co. v. Wilcox, 64 Conn. loi; s. c. 25 L. R. A. 90, 105. 
 
 ' I Beach, Mod. Eq. Jur., ? 16. ^lldem. '•Idem. ' Idem. 
 
 ' Yale Gas Stove Co. v. Wilcox, 64 Conn. loi, 25 I,. R. A. 90, 
 
 9 Harrell v. Wilson. 108 N. C. 97, 12 S. E. Rep. 889. 
 
THE MAXIMS OF EQUITY. 451 
 
 of a tract of land, who, with knowledge or notice of the rights 
 of a prior purchaser, pays off a lien on the land and then seeks 
 to be subrogated to the rights of the lien-holder, will not be en- 
 tertained in a court of equity.' 
 
 § 325. Equity aids the vigilant — 
 
 The purpose of this maxim is to evoke diligence, punish 
 laches, and to discourage stale demands; ' independently, too, of 
 any statutory periods of limitation.' It is invoked for this pur- 
 pose in suits for injunction, suits for relief against fraud, and in 
 all classes of cases, except those brought to enforce a trust against 
 an express trustee.* 
 
 § 326. Equality is equity — 
 
 Still another general principle is that equality is equity, or, as 
 it is sometimes expressed, equity deUghteth in equality. An il- 
 lustration of this principle is found in the rule, formerly so im- 
 portant, that equity leans strongly against joint-ownerships and 
 in favor of tenancy in common.' Again, where an estate or fund 
 is to be settled in equity, the apportionment is usually made pro 
 rata among the various claimants, as for example, in the case of 
 creditors' bills, and administration suits,* and trust funds.' So, 
 where an abatement of legacies is necessary, 2^ pro rata deduction 
 is made from all legacies of the same class.' And out of this 
 principle has grown the very important doctrine of contribution, 
 by which the burden is apportioned ratably among cosureties, 
 cocontractors and others.' 
 
 § 327. Equity looks to the intent rather than to the form — 
 In no case will a court of equity permit the veil of mere form 
 to hide the true nature of a transaction.'" The only difficulty in 
 the appUcation of this principle is in determining what is sub- 
 stance and what is form. " 
 
 » Bates V. Swiger, 40 W. Va. 420, 21 S. E. Rep. 874. 
 
 » Bispham's Prin. Eq. 64; Fesler v. Brayton, 145 Ind. 71, 32 L. R. A. 578. 
 3 Idem; Smith v. Turley, 32 W. Va. 14, 9 S. E. Rep. 46. 
 < Fesler v. Brayton, supra. See ante, Ch. XXV. 
 s I Beach, Mod. Eq. Jur., ? 9. ' Idem. 
 
 7 Russell V. Chicago Trust & Sav. Bank, 139 HI. 538, 29 N. E. Rep. 37. For 
 a full discussion of this maxim, see Pom., Eq. Jur. (2d ed.), \\ 405-411. 
 » I Beach, Mod. Eq. Jur., ? 9. 
 
 » Hawker v. Moore, 40 W. Va. 49, 20 S. E. Rep. 848. 
 "' Snell's Prin. Eq. 4.S. " Fetter on Equity, 23. 
 
452 EQUITY PRINCIPLES. 
 
 "This maxim," says a modern author,* "was long ago applied 
 to relieve against penalties and forfeitures. The usual security 
 in olden times for money borrowed seems to have been a bond for 
 an amount considerably larger than the sum borrowed, and con- 
 ditioned to be void if such sum, with interest, was paid on a 
 specified day. The courts of common law said a bargain is a 
 bargain, and, if the debtor made default, the bond became abso- 
 lute and indefeasible, and the creditor was entitled to recover its 
 full amount. Equity, however, looking at the substance of the 
 transaction, said that the bond was intended merely as security 
 for the money borrowed; and if the debtor, after the day named, 
 offered to repay it, with interest and expenses, equity would re- 
 strain the creditor from suing at law for the amount of the bond, 
 on the ground that such a course was unconscientious and op- 
 pressive. The doctrine was gradually extended to contracts 
 other than for the repayment of money. And the general rule now 
 is that, whenever a penalty or forfeiture is inserted to secure the 
 performance of some act or the enjoyment of some right, the latter 
 will be regarded as the real and principal intent of the instru- 
 ment, and the penalty or forfeiture as merely an accessory, and 
 the debtor will be relieved therefrom on compensating the creditor 
 for the damages he has actually sustained. This maxim is also 
 at the foundation of the law of mortgages. Even at this day, a 
 mortgage is in form a conveyance conditioned to be void on the 
 repayment, by the mortgagor, on a specified day, of the sum bor- 
 rowed, with interest. The common-law courts, looking merely 
 at the form of the instrument, held the mortgagee's estate inde- 
 feasible, unless the money was paid on the very day stipulated. 
 Equity, however, looking at the substance, regarded the transac- 
 tion merely as a pledge to secure the money borrowed, and per- 
 mitted the mortgagor to redeem after the time fixed, on payment 
 of principal and interest then due. Carrying this principle still 
 further, it is held that an absolute deed, taken as security for a 
 debt, is in equity a mortgage. If a transaction resolves itself 
 into a security, whatever may be its form, and whatever name 
 the parties may choose to give it, it is in equity a mortgage. 
 
 ' 'The maxim has also been held to be especially applicable in 
 cases of suretyship, with respect to which, whatever may be the 
 form of the instrument, or the obligation of the parties on its 
 
 ■ Fetter on Eq. 23-25. 
 
THE MAXIMS OF EQUITY, 453 
 
 face, a court of equity always inquires into the real nature and 
 objects of the transaction, and affords relief accordingly. 
 
 "But the maxim does not apply alone to carry out the true in- 
 tent of the parties to a contract. It also applies to frustrate that 
 intent whenever it contravenes the laws of the state, and the 
 parties have adopted some specious form to disguise it. In such 
 cases, equity will strip ofE the disguises, and, if necessary to the 
 ends of justice, cancel the contract. 
 
 "The foregoing illustrations do not, by any means, exhaust the 
 applications of this maxim; nor can it be said at the present day, 
 to be confined exclusively to courts of equity. Notable instances 
 of a disregard of form by courts of law, or at least in legal ac- 
 tions, will be found in a number of recent quo warranto proceed- 
 ings against corporations for attempted evasions of anti-trust 
 laws." 
 
 § 328. Equity looks on that as done v^hich in good con- 
 science ought to be done — 
 
 This maxim is not of universal application.^ It was estab- 
 lished by courts of equity to attain equitable ends, and it will not 
 be applied to accomplish results which are inequitable, as, for 
 example, to enable a vendee to waste or destroy property before 
 the performance of his contract.' 
 
 The doctrine of equitable conversion rests on this maxim, 
 that under some circumstances land will be regarded as money, 
 and money as land.' Money directed to be employed in the pur- 
 chase of land, and land directed to be sold and turned into 
 money, are to be considered as that species of property into 
 which they are directed to be converted,* and this in whatever 
 manner the direction is given, whether by will, by way of con- 
 tract, marriage articles, settlement or otherwise; and whether 
 the money is actually deposited or only covenanted to be paid; 
 whether the land is actually conveyed or only agreed to be con- 
 veyed.' So our supreme court holds that the surplus proceeds of 
 the sale of the land of a decedent under an order of court, deed 
 of trust or mortgage, will be treated in equity as land, and such 
 
 » Miller v. Waddingham, 91 Cal. 377; s. c. 11 L. R. A. 510, 512. - Idem. 
 3 Benbow v. Moore, 114 N. C. 263; s. c. 19 S. E. Rep. 156. 
 < Brown v. Miller, 45 W. Va. 211, 31 S. E. Rep. 956. 
 5 Benbow v. Moore, supra. 
 
454 EQUITY PRINCIPLES. 
 
 proceeds will go to tlie heir at law.^ But if the land is thus sold 
 in the lifetime of the owner, the sale operates a complete conver- 
 sion, and the surplus is treated as personalty,^ unless the land 
 belongs to an infant or insane person, in which case it only be- 
 comes personalty when the disability of infancy ceases, or, as to 
 the insane person, when he is restored to sanity and thus is capa- 
 ble of disposing of his property.' 
 
 So, also, acting on this maxim, it is the settled doctrine in 
 equity that the vendee in an executory contract for the sale of 
 land is the equitable owner of the land, while the vendor has 
 merely a lien for the purchase-money; and, being thus in equity 
 the owner, the vendee must bear any loss which may happen and 
 is entitled to any benefit which may accrue to the estate in 
 the interim between the agreement and the conveyance.* On 
 this principle, also, an agreement in writing to give a mort- 
 gage, or a mortgage defectively executed, or an imperfect at- 
 tempt to create a mortgage, or to appropriate specific property 
 to the discharge of a particular debt, will create a mortgage 
 
 • Fowler v. Lewis, Adm'r, 36 W. Va. 112, 150, 156; s. c. 14 S. E. Rep. 447, 
 460, 461, in the opinion of the coiirt; United States Blow Pipe Co. v. Spen- 
 cer, 40 W. Va. 698; s. c. 21 S. E. Rep. 769; Findley v. Findley, 42 W. Va. 
 372, 26 S. E. Rep. 433. 
 
 ' Findley v. Findley, supra. 3 fdem. 
 
 « Fetter on Equity, 26. 
 
 "They assert, however, that while these things ought to have been done, 
 they were not. Equity furnishes the remedy for just exactly that state of 
 affairs, for the very first maxim with which we meet in equity is, 'that it 
 will regard that as done which in good conscience ought to be done.' This 
 principle has been applied, says the same author, to every instance where an 
 equitable 'ought' with respect to the subject-matter, rests upon one person 
 toward another; to every kind of case where an affirmative equitable duty 
 to do some positive act devolves upon one party, and a corresponding equita- 
 ble right is held by another party, i Pom., Eq. Jur,., J 364. Fide also, 
 2? 369, 370. In Insurance Co. v. Jenks, 5 Ind. 96, it was objected that there 
 could be no recovery because no policy had issued, but the court said: 
 'Jenks having been entitled to a policy in his lifetime, a court of equity will 
 consider that done which should have been done,' and sustained a decree for 
 a satisfaction. See also in Wooddy v. Insurance Co., 31 Graft. 362, and 
 Tayloe v. Insurance Co., 9 How. 390, where insurance contracts were to be 
 issued, but had not, it was held that equity would enforce payment of the 
 losses directly, without there having been a previous decree for specific per- 
 formance." Sourwine v. Supreme I<odge, K. of P., 12 Ind. App. 447, 40 N. 
 E. Rep. 646. 
 
THB MAXIMS OP BQUITY. 455 
 
 in eqtiity, or a specific lien on the property intended to be mort- 
 gaged.i 
 
 ' 'Equity will not consider that as done which ought to have 
 been done, if to do so would injuriously affect third persons who 
 have contracted with reference to what actually has been done. 
 Thus equity will not consider a transaction as a pledge when 
 there is no delivery of the thing pledged, though the parties in- 
 tended the transaction as such, if credit has been given to the 
 pledgor by third persons, which might not have been given if he 
 had not remained in possession of the thing pledged. Nor does 
 the maxim apply in favor of strangers and volunteers, but only 
 in favor of the parties to the transaction and their privies.' 
 
 § 329. Equity imputes an intention to fulfill an obliga- 
 tion — 
 
 Where a man is bound to do an act, and he does one which is 
 capable of being considered as done in fulfillment of his obliga- 
 tion, it shall be so construed, because it is right to put the most 
 favorable construction on the acts of others, and to presume that 
 a man intends to be just before he is generous.' The meaning 
 here is that "where one acquires an interest in property, and is 
 under some obligation in respect thereto to another, though in 
 acquiring the same he expressed no intention of fulfilling the 
 obligation, equity will impute such an intention, and will erect 
 an equitable estate or interest in the subject-matter in favor of 
 the person to whom the obligation is owing. The most impor- 
 tant application of this doctrine is found in the case of resulting 
 trusts. Thus, if a person standing in a fiduciary relation to 
 another purchases property with trust funds, and takes a convey- 
 ance to himself, there is a presumption that he intended the pur- 
 chase for the benefit of the cestui que trust. And on the other 
 hand, the principle is often the ground for holding against a re- 
 sulting trust. Thus, as regards gifts, where one person stands 
 in such a relation to another that there is an obligation on him to 
 make provision for the other, and he makes a purchase or invest- 
 ment in the name of the other, or in their joint names, the pre- 
 sumption arises of an intention on his part to discharge such ob- 
 ligation, and, therefore, in the absence of evidence to the con- 
 
 ' Idem. ' Fetter on Equity, 27. ' Snell's Princ. Eq. 46. 
 
456 EQUITY PRINCIPLBS. 
 
 trary, that purchase or investment is held to be in itself evidence 
 of gift, but no resulting trust arises. ' ' ' 
 
 § 330. Equity acts in personam — 
 
 In the absence of statute, providing otherwise, and which was 
 the case in the earlier history of courts of equity, their de- 
 crees, of whatever kind or nature, operated strictly and exclu- 
 sively in personam.^ The only remedy for their enforcement was 
 by what is termed "process of contempt," under which the party 
 faihng to obey them was arrested and imprisoned until he yielded 
 obedience, or purged the contempt by showing that the dis- 
 obedience was not willful, but the result of inability not produced 
 by his own fault or contumacy.' But with us, by virtue of stat- 
 ute,* a decree of a court of eqviity has the force and effect of a 
 personal judgment, and it may be enforced by execution in the 
 same manner and with like effect as a judgment at law.' And 
 according to the weight of authority in the United States, an ac- 
 tion of debt may be maintained on a decree, either domestic or 
 foreign, for the unconditional payment of a specific sum of 
 money.' But, notwithstanding the enlarged effect now given to 
 the decrees of courts of chancery, they still retain their inherent 
 power of acting in personam. Thus, equity will enjoin an indi- 
 vidual from maintaining unconscientious proceedings in common- 
 law courts, and will punish disobedience of its orders by impris- 
 ment.' So it will compel persons, who are properly before the 
 court, to do, or restrain them from doing, acts with reference to 
 a subject-matter beyond its territorial jurisdiction." Thus, a 
 person may be enjoined from suing abroad in breach of a con- 
 tract, or may be compelled to convey land situate in another 
 
 » I Beach, Mod. Eq. Jur., g 24. 
 
 » Clements v. Tillman, 80 Ga. 102, 5 S. E. Rep. 194, 196; Daniel, Ch. Pr. 
 (ist ed.) 690. 
 
 3 Clements v. Tillman, supra; Gibson, Suit in Chancery, § 619; Hook v. 
 Ross, 1 H. & M. 310. 
 
 ■• Code, chap. 139, sec. i; Rickard v. Schley, 27 W. Va. 617. 
 
 s Code, chap. 131, sec. 21; Rickard v. Schley, supra; Hill v. Maury, 21 
 W. Va. 162; Carskadon v. Minke, 26 W. Va. 729. 
 
 ' Postv. Neafie, 3 Caine's Rep. 22, 2 I,, ed. 493; Dubois v. Dubois, 6 Cowen, 
 494, 8 L. ed. 983; Ho-ward v. Howard, 15 Mass. 196; Thrall v. Waller, 13 Vv. 
 231; Williams v. Preston, 3 J. J. Marsh. (Ky.), 600. 
 
 ' Fetter on Equity, 29. ' Idem. 
 
THE MAXIMS OF BQUITY. 457 
 
 State or country.^ So, the courts of one state may enter a de- 
 cree for the foreclosure of a mortgage upon a line of railroad ex- 
 tending through several states whenever it has properly taken 
 jurisdiction of the defendants in personam.'' 
 
 % 331. Equity acts specifically- 
 
 Excepting in the actions of ejectment and detinue and replevin, 
 specific redress is not afforded save through the medium of a 
 court of equity. Thus, equity will compel a contract to be 
 specifically performed instead of awarding damages for its 
 breach.^ Where a mistake has been made in a written instru- 
 ment, or the written instrument itself has been lost or destroyed, 
 equity, acting specifically, will place the parties in the same sit- 
 uation as though the mistake or loss had not occurred by de- 
 creeing a reformation in the one case and a re-execution in the 
 other.* 
 
 § 332. Other maxims — A right of action cannot arise out 
 of fraud — 
 
 In addition to the maxims already given and illustrated, we 
 here give some others of a practical character and which are very 
 frequently invoked by our chancery courts in their daily admin- 
 istration of remedial justice, commencing with the one which de- 
 clares, ' 'a right of action cannot arise out of fraud. ' ' 
 
 An examination of the cases wherein this maxim has been ap- 
 plied by the courts will show that by reason of this principle a 
 court of equity will not lend its aid to enforce a contract growing 
 immediately out of and connected with an illegal or immoral 
 act. 5 
 
 In Holman v. Johnson,' Lord Mansfield remarks: "The ob- 
 jection that a contract is immoral or illegal as between plaintiff 
 and defendant, sounds at all times very ill in the mouth of the 
 
 ■ Pingree v. Coffin, 12 Gray, 288; Dehon v. Foster, 4 Allen, 545; Wat., 
 Spec. Perf., ? 48; 2 Story, Eq. Jur., ?§ 899, 900; Fry, Spec. Perf., §? 102, 103; 
 Cloud V. Gregsley, 125 111. 313, 17 N. E. Rep. 826. 
 
 ' Bispham's Princ. Eq. 73. ' Fetter on Equity, 31. * Idem. 
 
 5 Dodson V. Swan, 2 W. Va. 511; Sullivan v. Hergan, 17 R. I. 109; s. c. 9 
 L. R. A. no; Harvey v. Merrill, 150 Mass. i; s. c. 5 L. R. A. 200; Nester v. 
 The Continental Brewing Co., 161 Pa. St. 473; s. c. 24 I,. R. A. 247; Tomp, 
 kins V. Compton, 93 Ga. 520; s. c. 21 S. E. Rep. 79. 
 
 ' Cowp., 341. 343- 
 
458 BQTJITY PRINCIPI,ES. 
 
 defendant. It is not for his sake, however, that the objection is 
 ever allowed, but it is founded in general principles of policy which 
 the defendant has the advantage of, contrary to the real justice, 
 as between him and the plaintiff, by accident, if I may so say. 
 The principle of public policy is this: Ex dolo malo non oritur 
 actio. No court will lend its aid to a man who founds his cause 
 of action upon an immoral or an illegal act. If, from the 
 plaintiff's own stating or otherwise the cause of action appears to 
 arise ex turpi causa, or from the transgression of a positive law 
 of this country, there the court says he has no right to be as- 
 sisted. It is upon that ground the court goes, not for the sake 
 of the defendant, but because it will not lend its aid to such a 
 plaintiff. So, if the plaintiff and defendant were to change sides, 
 and the defendant was to bring his action against the plaintiff, 
 the latter would then have the advantage of it, for where both 
 are equally in fault, potior est conditio defendentis."^ 
 
 By virtue of this maxim, a legatee cannot secure his legacy 
 when he has killed the testator in order to prevent a revocation 
 of the will;'' nor can a broker collect his commissions on a water- 
 ing contract for buying a,nd selling for one who has been dealing 
 in futures;' nor will a combination be upheld of brewers to silence 
 and stifle competition among them within even a limited territory 
 fixing a minimum price at which any of them shall sell beer to 
 the customer of another or to new trade.* 
 
 § 333. 'Where both parties are equally in the fault the 
 condition of the defendant is preferable — 
 
 The meaning of this maxim, in pari delicto, potior est conditio 
 defendentis, is simply that the law leaves the parties where they 
 stand, not that it prefers the defendant to the plaintiff, but that 
 it will not recognize a right of action, founded on the illegal con- 
 tract, in favor of either party, against the other. They must 
 settle their own questions in such cases without the aid of courts.* 
 
 ■ See Sullivan v. Hergan, supra; Church v. Proctor, 13 C. C. A. (U. S. ) 
 426. 
 
 ' Riggs V. Palmer, 113 N. Y. 506; s. c. 22 N. E. Rep. 188. 
 
 3 Harvey v. Merrill, supra, and notes. 
 
 ■* Nester V. The Continental Brewing Co., supra. 
 
 ! Opinion of Brannon, J., in Rock v. Mathews, 35 W. Va. 531; s. c. 14 S. 
 E. Rep. 137. In this case the learned judge (Brannon) gives a thorough 
 consideration to the meaning and practical bearing of this maxim both upon 
 
THE MAXIMS OF EQUITY. 459 
 
 This maxim forbids the interference of equity between parties 
 to the relief of one against the other in a fraudulent transaction.^ 
 By force of this rule a bill in chancery will not be entertained to 
 cancel instniments of indebtedness given under an agreement to 
 compound a felony or stifle its prosecution.' The most frequent 
 application of this principle is in cases where a party has entered 
 into some contract or conveyed his property, or done some other 
 act for the purpose of hindering, delaying or defrauding his 
 creditors. It is well settled that a court of equity will not aid 
 such a party or his heirs to recover the property from the grantee 
 or his heirs after the fraud is accomplished.' 
 
 Under this maxim no contract will be enforced or relieved 
 against, which has been ftdly executed, that is contrary to public 
 policy, law or sound morals.* Thus, where two corporations are 
 consolidated and which is prohibited by law, a note given in the 
 purchase of stock bought expressly for such purpose cannot be 
 collected." So an agreement for compensation for procuring the 
 appointment or resignation of a public officer is void as against 
 public policy,* and a mortgage given to secure the payment of 
 such compensation is likewise void.'' 
 
 § 334. A simple recommendation does not bind — 
 
 It is well settled that mere commendation or the expression 
 of opinion will not in ordinary cases, be regarded as a fraudulent 
 representation.* The statement of an opinion is not, as a gen- 
 eral rule, the representation of a fact, and such a statement can 
 seldom be deemed fraudulent.' 
 
 reason and authority. See also Kirkpatrick v. Clark, 132 111. 343; s. c. 8 
 L. R. A. 511 and note; s. c. 24 N. E. Rep. 71. 
 
 » Carrothers v. Harris, 23 W. Va. 177; Brown v. Wylie, 2 W. Va. 502; 
 Cain V. Cox, 23 W. Va. 594. 
 
 = Rock V. Mathe-ws, supra. 3 i Beach, Mod. Eq. Jiir., § 78. 
 
 * Hutchins v. Weldin, 114 Ind. 600, 15 N. E. Rep. 804; Kirkpatrick v. 
 Clark, 132 111. 342, 8 L. R. A. 511. 
 
 s Tompkins v. Compton, 93 Ga. 520, 21 S. E. Rep. 79. 
 
 « Basket v. Moss, 115 N. C. 448, 20 S. E. Rep. 733. 
 
 ' Basket v. Moss, supra. 
 
 ' Neidfer v. Chastain, 71 Ind. 363; Southern Development 'Co. v. Silva, 125 
 V. S. 248, 31 L. ed. 679; Wilcox v. Henderson, 64 Ala. 535; Dyer v. Tilton, 
 23 Vt. 313; Grant v. Grant, 56 Me. 572; Abbott v. Treat, 78 Me. 126; Dawe, 
 V. Morris, 149 Mass. 188, 4 L. R. A. 158; Lake v. Security Loan Asso., 72 
 Ala. 207; Nounnan v. Sutter County Land Co., 81 Cal. 1, 6 L. R. A. 219. 
 
 9 Conant v. National State Bank, 121 Ind. 323, 22 N. E. Rep. 250; Akin v. 
 Kellogg, 119 N. Y. 23, 23 N. E. Rep. 1046. 
 
460 BQUITY PRINCIPI,BS. 
 
 Ordinarily, even statements of facts do not constitute fraud 
 when they relate to the future.' Thus the statements or repre- 
 sentations made by the sellers of certain machinery as to what 
 it will do when set up and put into operation, that it has a 
 capacity to turn out so many articles daily, are mere expressions 
 of opinion, and unless shown to have been made with the intent 
 to deceive or defraud, are not actionable.* So, too, representa- 
 tions by one selling railroad bonds, that the "bond was an A. No. 
 I bond," and. that "the railroad was good security" therefor, 
 made to the purchaser for the purpose of inducing the sale, will 
 not subject him to an action even though he made the statements 
 in bad faith.' Nor will false representations respecting a mere 
 question of law, as for instance, as to the validity of letters-patent, 
 constitute a cause of action.* So in negotiations for the sale of 
 property, mere statements and exaggerations made by the seller, 
 as to its value, the prices he has been offered for it, what can be 
 made out of it, etc., which are mere "trade talk," to induce a 
 purchase of it, give no foundation for suit or action.^ But, on 
 the other hand, if such representations are material and false, and 
 relate to matters peculiarly within the knowledge of him who 
 makes them, and embody the aflSrmance of a present existent 
 fact, and the party to whom they are made, relying upon them, 
 has been thereby deceived and injured, the party making such 
 representations subjects himself to liability therefor.* As, for 
 
 ' Conant v. National State Bank, supra; Bethell v. Bethell, 92 Ind. 318; 
 Fenwick v. Grimes, 5 Cranch, C. C. 439; IvOng v. Woodman, 58 Me. 49. 
 
 = Conant v. National State Bank, supra. 
 
 3 Deming v. Darling, 148 Mass. 504, 2 L. R. A. 743. 
 
 * Dilman v. Nadlehoffer, 119 111. 567, 7 N. E. Rep. 88. 
 
 5 Houghton V. Graybill, 82 Va. 573; Kimball v. Bangs, 144 Mass. 321, ir 
 N. E. Rep. 113; Reynolds v. Palmer, 21 Ped. Rep. 433; Chapman v. Suc- 
 cession of Wilson, 5 Fed. Rep. 305; Britton v. Brewster, 2 Fed. Rep. 160; 
 Gustafson v. Rusetmeyer, 70 Conn. 125, 39 I<. R. A. 644; Maltby v. Austin 
 (Wis.) 27 N. W. Rep, 162; Collins v. Jackson (Mich.), 19 N. W. Rep. 947; 
 Bank of Barnesville v. Yocum (Neb.), 9 N. W. Rep. 84; Seeberger v. Robert 
 (Iowa), 8 N. W. Rep. 482. 
 
 ' Rorer Iron Co. v. Trout, 83 Va. 399, 2 S. E. Rep. 713; Linhart v. Fore- 
 man, 77 Va. 540; Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N. E. 
 Rep. 168; Nash v. Minnesota Title Ins. &;;T. Co., 163 Mass. 574, 28 L. R. A. 
 753; Rothmiller v. Stein, 143 N. Y. 581, 26 I,. R. A. 148; Hedin v. Minne- 
 apolis Medical & S. Inst., 62 Minn. 146, 35 L. R. A. 417; Cameron v. Mount, 
 86 Wis. 477, 22 L. R. A. 512; Andrews v. Jackson, 168 Mass. 266, 37 I,. R. 
 A. 402; Teachout v. Van Hoesen, 76 Iowa, 113, i I<. R. A. 664. 
 
THB MAXIMS OF EQUITY. 461 
 
 instance, a statement that promissory notes are "perfectly good," 
 made by the holder, who knows that such statement is false, to 
 induce a purchaser of the notes who was not in a condition to 
 know whether they were good or not to take them, is a repre- 
 sentation for which the seller of the notes is liable, and not the 
 expression of a mere opinion.^ 
 
 The supreme court of Illinois, in Dillman v. NadlehofEer, 
 supra, holds that while the general rule is that general exaggerated 
 statements as to the value of articles sold, though amounting to 
 fraudulent representations, do not constitute ground for the 
 rescission of the contract of purchase, yet there are exceptions 
 to this rule, and that the usual grounds of these exceptions are: 
 (i) The unequal knowledge and position of the parties; (2) the 
 vendor's knowledge of the purchaser's ignorance; (3) misrepre- 
 sentation of value in response to direct questions; (4) the gross 
 inadequacy or disparity of value. 
 
 § 335- Fraud and deceit should excuse no man — 
 
 The principle that fraud vitiates everything which it touches 
 is almost as old as the court of chancery itself,* and this maxim 
 is one of the very comer stones of equity jurisprudence. 
 
 § 336. Ignorance of the law excuses no one — 
 
 The meaning of the maxim " Ignorantia legis neminem ex- 
 cusaf ' is that ignorance of the law of one's own state or country 
 is no excuse for a breach or mistake of duty.' 
 
 Ignorance of foreign law is ignorance of fact, and in this re- 
 gard and as to this maxim the states of the Union are treated as 
 foreign to one another.* 
 
 The presumption is that every one assuming to deal with his 
 own property is acquainted with his rights to it or in it, provided 
 he has had a reasonable opportunity of knowing them.' And 
 nothing can be more liable to abuse than to permit a person 
 after parting with his property to reclaim it upon the mere pre- 
 tense that, at the time of parting with it, he was ignorant of the 
 law affecting his title. But the maxim applies, properly speak- 
 
 • Crane v. Elder, 48 Kan. 259, 15 L. R. A. 795. 
 
 ' Brown v. Grove, 116 Ind. 84; s. c. 18 N. E. Rep. 387. 
 
 3 Morgan v. Bell, 3 Wash. 554; s. c. 16 L. R. A. 614, 622. 
 
 ■• Morgan v. Bell, supra; Schaefer v. Wunderle (111.), 39 N. E. Rep. 627. 
 
 5 Snell's Prin. Eq. 367. 368. 
 
462 EQUITY PRINCIPLES. 
 
 ing, only to the general law of the country, and not therefore to 
 ignorance of a private /«i or right.* 
 
 Our supreme court in Cramer v. McSwords,' decides thafwhile 
 ignorance of law will not prevent the operation of the statute 
 of limitations, the rule is different in equity, a court of con- 
 science; in such court moral as well as legal grounds may be 
 considered, and a satisfactory moral excuse may be entertained, 
 although it result from ignorance of law. 
 
 ' Idem. » 24 W. Va. 594. 
 
MISTAKB. 463 
 
 CHAPTER XXX. 
 MISTAKE. 
 
 i 337. Definition of mistake and grounds of equity jurisdiction therein. 
 
 338. As to relief where there has been a mistake at law. 
 
 339. Illustrations of the principle that mistakes of law will not be rem- 
 
 edied. 
 
 340. As to corrections of mistakes of fact. 
 
 341. Relief in cases of mistakes in written instruments. 
 
 342. Cancellation of deed or other instrument because of mistake. 
 
 343. Correction of mistakes in contracts of insurance. 
 
 344. Correction of. a mistake of the scrivener who drafted the writing. 
 
 345. As to the use of parol evidence for the correction or reformation of a 
 
 written instrument. 
 
 346. Money paid under a mistake of fact. 
 
 347. How mistakes should be alleged in the bill. 
 
 § 337- Definition of mistake and grounds of equity juris- 
 diction therein — 
 
 Mistake in legal contemplation is where one acts on some er- 
 roneous mental conception or conviction, either of law or fact, and 
 thus executes some instrument or does some other act which but 
 for such conception or conviction he would not have executed or 
 ^one;^ or it is an erroneous mental condition, conception or con- 
 viction, induced by ignorance, misapprehension or misunderstand- 
 ing of the truth, but without negligence, and resulting in some 
 act done or omission done or suffered erroneously by one or both 
 parties to a transaction, but without its erroneous character be- 
 ing intended or known at the time.* 
 
 The grounds of jurisdiction in case of mistake are divided 
 into two general classes — that of mistakes of law and that of mis- 
 takes of fact.' 
 
 § 338. As to relief where there has been a mistake of 
 law — 
 
 It may be laid down as a well-settled principle that agreements 
 made and acts done under a mistake of law, as we have already 
 
 » Fetter on Equity. ' Pomeroy, Eq. Jur., § 000. 
 
 3 Snell's Prin. Eq. 367; a»^. i 49- 
 
464 EQUITY PRINCIPLES. 
 
 seen^ (if not otherwise objectionable), are generally valid and 
 obligatory." But if the mistake of law has been accompanied by 
 undue advantage taken by the party benefited of the party in- 
 jured, then a court of equity will interpose to grant relief.' 
 
 It is observed by a late author,* that "the result of the au- 
 thorities would seem to be that with regard to mistakes of law, 
 in the ordinary sense of the term, there is no relief, unless there 
 be a fiduciary relation or some equity by reason of the conduct of 
 the parties." 
 
 § 339. Illustrations of the principle that mistakes of la^v 
 will not be remedied — 
 
 In illustration of this principle it may be stated that the payment 
 of money under a mistake of law cannot be recovered back;' nor 
 can rehef be granted from the effects or consequences of the mis- 
 taken construction of a written instrument;' nor will a compromise 
 be set aside because made under a mistake of law;' nor will equity 
 lend its aid because the rules of law upon which the parties have 
 
 ■ Ante, I 49. 
 
 =■ Harmer v. Price, 17 W. Va. 573; Haigh v. U. S. B. & L. Association, 19 W. 
 Va. 792; Shriver v. Garrison, 30 W. Va. 326; s. c. 4 S. E.Rep. 660; Porter v. 
 Jefferies, 40 S. C. 92; s. c. i8 S. E. Rep. 229; Loudermilk v. Loudermilk, 98 Ga. 
 780; s. c. 25 S. E. Rep. 927; I Beach, Mod. Eq. Jur., § 35; Fetter on Equity, 
 118. 
 
 3 Opinion of Woods, J., ia Shriver v. Garrison, supra. "It is doubtful 
 whether any exceptions really exist to the general principle that equity will 
 not relieve against a mistake at law, and it is believed that relief, whenever 
 given, may be grounded, not on the mere fact that there was a mistake of 
 law, but on some other fact, which is, independent of that, e£5cacious to call 
 forth the remedial power of equity. Thus where the mistake of law is oc- 
 casioned by fraud, imposition, or misrepresentation, a party suffering thereby 
 may have relief in equity. There need not even be actual fraud, but it is 
 sufficient if one of the parties, availing himself of the opportunities afforded 
 by the mistake, will take an unconscionable advantage of the other; but here 
 as before the true ground of relief is not the mistake of law, but the fraud 
 which is implied." See ante, I 49. 
 
 * I Beach, Mod. Eq. Jur., § 36. 
 
 5 Shriver v. Garrison, 30 W. Va. 326; s. c. 4S. E. Rep. 660; Haigh v. Loan 
 Association, 19 W. Va. 792; Hamer v. Price, 17 W. Va. 523. 
 
 « Porter v. Jefferies, 40 S. C. 92; s. c. 18 S. E. Rep. 229. 
 
 » 1 Beach, Mod. Eq. Jur., ? 43. 
 
MISTAKE. 465 
 
 based their actions or agreements have been reversed or modified 
 by subsequent decisions.' 
 
 It has been said that where the law is confessedly doubtful 
 and about which ignorance may well be supposed to exist, a per- 
 son acting under a misapprehension of the law will not forfeit 
 any of his legal rights by reason of such mistake.' 
 
 § 340. As to corrections of mistakes of fact — 
 
 The general rule is that an act done, or contract made, under 
 a mistake or in ignorance of a material fact, is voidable and re- 
 lievable in equity; for it is not possible that any one can, by any 
 amount of diligence, acquire a knowledge of all matters of fact.^ 
 But, in order to reUeve from a mistake of fact, as we have already 
 seen,* there must be something beyond the mere matter of a bare 
 mistake. It must be material, not discoverable by ordinary dili- 
 gence, and the parties must be so situated with reference to 
 each other that, if concealment is practiced, the party doing so 
 was under obligations to the other to make full disclosure.* 
 Thus, where a mistake is made in the partition of real estate 
 among the common owners thereof, whereby one receives a large 
 quantity in excess of his jujst and proportionate share, and the 
 other proportionately less than his just share, equity will relieve 
 against this mistake as matter of original jurisdiction.' 
 
 § 341. Relief in cases of mistakes in ■written instruments — 
 In addition to what we have already said in a former section of 
 this work,' we may further observe that relief will not be granted 
 against a mistake in a written instrument, unless the mistake be 
 perfectly distinct from the instrument.* And a mistake in the 
 execution of a writing will not in equity be corrected, unless it 
 appears that the writing does not contain the intention of the 
 
 ^Idem, 1 44. 
 
 ' I Beach, Mod. Eq. Jur., I 42, citing Webb v. Alexandria, 33 Gratt. i68, 
 176. See ante, I 49. 
 
 3 Snell's Princ. Eq. 372. ■• Ante, I 49. 
 
 5 See Snell's Princ. Eq. 373; Allen v. Yeater, 17 W. Va. 128, i Beach, Mod. 
 Eq. Jut., ? 54; Shriver v. Garrison, 30 W. Va. 660, 4 S. E. Rep., at pp. 672, 
 
 673- 
 « Fore V. Foster, 86 Va. 104, 9 S. Rep. 497. 
 7 See Cancellation of Written Instruments, chap. 8, sec. 49. 
 * Jarrell v. Jarrell, 27 W. Va. 743. 
 
 30 
 
466 EQUITY PRINCIPLES. 
 
 parties thereto at the time it was made; and the proof of this, 
 either parol or written, or both, must not be loose, equivocal or 
 contradictory, nor in its texture open to reasonable doubt, or op- 
 posing presumptions; for the writing itself is regarded as evidence 
 so strong, that only other unequivocal evidence irresistibly con- 
 clusive is sufl&cient to reform it.^ 
 
 In Shenandoah Val. R. Co. v. Dunlap," Lewis, P., in the course 
 of his opinion delivered for the entire court, says: "The authori- 
 ties all agree that equity has jurisdiction to reform written in- 
 struments in two well-defined classes of cases only, viz: (i) 
 Where there has been an innocent omission or insertion of a ma- 
 terial stipulation, contrary to the intention of both parties, and 
 under a mutual mistake; and (2) where there has been a mistake 
 of one party, accompanied by fraud or inequitable conduct by the 
 remaining parties. But so great and obvious is the danger of 
 permitting the solemn engagements of parties, when reduced to 
 writing, to be varied by the introduction of parol evidence, that 
 in no case will relief be granted, except where there is a plain 
 mistake, clearly made out by satisfactory and unquestionable 
 proofs.' 
 
 A mutual mistake in a deed on the part of antecedent parties 
 cannot affect a purchaser for value and without notice;* and, un- 
 der a bill against such a purchaser to reform a deed on the ground 
 of mutual mistake, the burden of showing that the purchaser 
 had notice is on the plaintiff.' 
 
 § 343. Cancellation of deed or other instrument because 
 of mistake — 
 
 It is a well-settled principle of equity that, where a contract 
 has been made under a mutual mistake of fact, and a contract 
 has thus been entered into different from that which the parties 
 thereto intended, that a court of equity will cancel or rescind 
 
 ■ Idetn; Donaldson v. Lewis, 93 Va. 472; s. c. 25 S. E. Rep. 541; Railroad 
 Co. V. Dunlap, 86 Va. 346; s. c. 10 S. B. Rep. 239; Carter v. McArtor, 28 
 Gratt. 360; Leas v. Eidson, 9 Gratt. 277; Major v. Ficklin, 85 Va. 738; s. c. 
 8 S. E. Rep. 715; Fudge v. Payne, 86 Va. 303, 10 S. E. Rep. 7. 
 
 ' 86 Va. 346; 10 S. E. Rep. 239. 
 
 3 See, also, Donaldson v. Levine, 93 Va. 472; s. c. 25 S. E. Rep, at page 
 542, where this doctrine is quoted with approval. 
 
 « Snyder v. GrandstaS, 96 Va. 473, 31 S. E. Rep. 647; Robinson v. Braiden, 
 44 W. Va. 183, 28 S. E. Rep, 798. 
 
 s Idem, 
 
MISTAKB. 467 
 
 such contract.' Thus a deed, into which has been incorporated 
 by erroneous description a tract of land not intended to be con- 
 veyed, will be canceled,^ and equity will also set aside and annul 
 a decree which is the result of mistake.' So equity has jurisdic- 
 tion of an issue devisavit vel non, to set aside a will on the ground 
 that it was executed by mistake, and therefore was not the will 
 of the testator.* But the mistake which will avail to set aside 
 a will is the mistake as to what it contains or in regard to the 
 paper itself, not a mistake either of law or of fact, in the mind 
 of the testator, as to the effect of what he actually and inten- 
 tionally did.' 
 
 And where an arbitration has been made a rule of court the 
 award therein may be recommitted to the arbitrator, to correct a 
 mistake in such award, and when such mistake is corrected the 
 award will not be treated as a new award, but as a mere correc- 
 tion of the award as returned.* 
 
 § 343- Correction of mistakes in contracts of insurance — 
 Where the agent of an insurance company enters in a memo- 
 randum for insurance the wrong name of the party as the in- 
 sured, this will be corrected in a suit in equity brought' on an 
 executory contract for insurance by the party who owns the prop- 
 erty destroyed and who negotiated the insurance.^ 
 
 § 344. Correction of a mistake of the scrivener v^ho 
 drafted the writing — 
 It is laid down by the x:ourts that the mistake of the scrivener 
 in drafting a written instrument, whether the mistake consist of 
 law or fact, will be corrected by a court of equity.' But not, 
 however, to the prejudice of the rights and interests of a third 
 
 » Ivick V. Fulton, 3 Gratt. 193; Baxter v. Tanner, 25 W. Va. 60; s. c. 12 S. 
 E. Rep. 1094; Bluestone Coal Co. v. Bell, 38 W. Va. 297; s. c. 18 S. E. Rep. 
 493; Pratt V. Bowman, 37 W. Va. 715; s. c. 17 S. E. Rep. 210; Hudson v. 
 Waugh, 93 Va. 518; s. c. 25 S. E. Rep. 530. See ante, H 49, 340. 
 
 = Baxter v. Tanner, supra. 3 Idem. 
 
 * Couch V. Eastham, 27 W. Va. 796. s Mem. 
 
 « Henley v. Menefee, 10 W. Va. 771. 
 
 ' Croft V. Hanover Fire Ins. Co., 40 W. Va. 508, 21 S. E. Rep. 854, 
 
 8 Alexander & Co. v. Newton' et al., 2 Gratt. 266; Creigh's Adm'rv. Boggs 
 etal., 19 W. Va. 240. 
 
468 EQUITY PRINCIPLES. 
 
 party, who has acted upon the belief that the instrument em- 
 bodies the true contract or agreement of the parties thereto.' 
 
 § 345. As to the use of parol evidence for the correction 
 or reformation of a written instrument — 
 
 Where suit has been brought to correct a mistake of fact in a 
 ■written instrument, such mistake may be shown by parol evi- 
 dence, provided such evidence be clear and strong so as to estab- 
 lish such mistake to the satisfaction of the court;* and the proof 
 must further show that the mistake was mutual.' 
 
 § 346. Money paid under a mistake of fact — 
 
 It is settled that money paid under a mistake of fact may be 
 recovered back in a court of equity, though assumpsit may be 
 maintained for the same cause.* 
 
 § 347. How mistake should be alleged in the bill — 
 
 It is well settled that matters not averred in the bill or answer 
 can not be made an issue in the suit.* 
 
 In averring accident, fraud or mistake as a ground of relief in 
 equity, the pleader must set forth in his bill the facts constituting, 
 such accident, fraud or mistake, so that their sufficiency may ap- 
 pear and that issue may be taken upon the facts so alleged.* 
 
 Thus, where there has been a settlement of accounts between 
 the parties, and it is sought to show that there is a mistake in 
 the settlement, such mistake must be pointed out and shown by 
 proof by the party averring such mistake.' So, too, when relief 
 is sought against the indorsement of a clerk, on a deed pre- 
 sented for recordation, on the ground that such indorsement was 
 the result of accident, fraud or mistake the facts relating thereto" 
 must be averred in the bill.' 
 
 • Lough V. Michael, 37 W. Va. 679, 17 S. E. Rep. 181. 
 " Allen V. Yeater, 17 W. Va. 128; ante, \ 49. 
 
 3 Fishback v. Ball, 34 W. Va. 644; s. c. 12 S. E. Rep. 856. 
 
 • Wilkins v. Woodfin, 5 Munf. 183. 
 
 5 Burley v. Weller, 14 W. Va. 264; Hunter v. Hunter, 10 W. Va. 321. 
 
 • Burley v. WeUer, supra; Colwell v. Caperton, 27 W. Va. 397. 
 
 ' Colwell V. Caperton, supra, at p. 409, citing Parkersburg Nat. Bank v. 
 Alls, 5 W. Va. 50, and Manke v. Neal, 23 W. Va. 57. 
 ' Burley v. Weller, supra. 
 
MULTIPHCITY OF SUITS. 469 
 
 CHAPTER XXXI. 
 MULTIPLICITY OF SUITS. 
 
 2 348. Grounds and classification of equity jurisdiction to prevent a multi- 
 plicity of suits. 
 
 349. The prevention of a multiplicity of suits, arising out of community 
 
 of interests or conflicting interests as to the same fund. 
 
 350. The doctrine preventing reiterated litigation between the same 
 
 parties and concerning the same matter. 
 350a. Equity administers fuU relief to avoid multiplicity of suits. 
 
 ^ 348. Grounds and classification of equity jurisdiction to 
 prevent a multiplicity of suits— 
 
 The purpose of this chapter is to exhibit those general princi- 
 ples which underlie in all cases the interposition of equity to 
 avoid a repetition of litigation or a multiplicity of suits. The 
 cases wherein equitj' interferes may be divided into two classes: 
 ( I ) Where numerous persons have a community of interests or a 
 common right or title in the subject-matter of the controversy, as 
 against a common adversary; or where each has an equitable 
 cause of action or an equitable defense against such adversary, 
 involving the same questions of law and fact.' (2) Where reit- 
 erated litigation at law between the same parties concerning the 
 same subject is threatened, or has actually taken place, without 
 conclusively adjudicating their rights.*' 
 
 § 349. The prevention of a multiplicity of suits, arising 
 out of community of interest or conflicting in- 
 terests as to the same fund — 
 It is said, whenever numerous persons have a community of 
 interest or a common right or title in the subject-matter of con- 
 troversy, it matters not whether the right be asserted by one 
 against many or by many against one.' And where the same 
 party has or claims to have some common right again-st a num- 
 ber of persons, the establishment of which would require a sepa- 
 
 • Fetter on Equity, 15. ' Idem, 3 Idem, 16. 
 
470 EQUITY PRINCIPLES. 
 
 rate action brought against each, jurisdiction exists in equity to 
 prevent a multiplicity of suits. ^ 
 
 Thus, where a sherifE holds an execution and there are numer- 
 ous antagonistic claimants of the fund upon which it is asserted 
 that ih& fieri facias is a lien, such sheriff may convene the parties 
 in equity and have their respective rights determined in one suit.* 
 And where there are numerous insurers liable for loss and the 
 loss should be apportioned among them, equity will take jurisdic- 
 tion to make such apportionment.' 
 
 § 350. The doctrine preventing reiterated litigation be- 
 tween the same parties and concerning the same 
 matter — 
 Ordinarily, eijuity will not interpose to prevent repeated litiga- 
 tion between the same parties until the plaintiff has first estab- 
 lished his right at law;* or where the persons who controvert 
 the right are so numerous as to render an issue, under the direc- 
 tion of the court, necessary to bring in all the parties concerned." 
 Formerly, equity refused its aid unless the right had been de- 
 termined in favor of the plaintiff in the bill in two or more 
 actions at law;* but this is no longer required, one full and fair 
 trial being deemed sufficient.' But equity will interpose by in- 
 junction to restrain interference with an easement, though the 
 right thereto has not been established at law.* Thus, the ob- 
 struction of a watercourse, the use of which the plaintiff has for 
 a long time enjoyed, will be restrained by a court of equity with- 
 out requiring the plaintiff to first settle his right in an action at 
 law.' The rule, even as to easements, was formerly otherwise.^* 
 
 § 350a. Equity administers full relief to avoid multiplicity 
 of suits — 
 
 It is a firmly settled doctrine of equity jurisprudence, that 
 when any ground exists for the exercise of the jurisdiction of 
 
 ■ 1 1<. R. A. 801, note, citing Black v. Shrieve, 7 N. J. Eq. 440; N. Y., etc., 
 R. Co. V. Schuler, 17 N. Y. 592, 34 N. Y. 30, 44; Sheffield Water Works Co. v. 
 Yeomans, L. R. 2 Ch. 8; Ware v. Horwood, 14 Ves. Jr. 28; Saratoga Co. v, 
 Deyoe, 77 N. Y. 219; i Pom., Bq. Jvir. 299. 
 
 » Nease, Sheriff, v. j^tna Insurance Co., 32 W. Va. 283, 9 S. E. Rep. 233. 
 
 3 Pulleur V. Detroit P. & M. Co., i L. R. A. 801. 
 
 < Eldridge v. Hill, 2 John. Ch. 281; s. c. i N. Y. Ch., L. ed., 378 and note. 
 
 s Eldridge v. Hill, supra. « 3 Enc, PI. & Pr. 563. ijdem, note. 
 
 • Jones on Easements, \ 883. » Idem. ■« Idem. 
 
MULTIPUCITY OP SUITS. 471 
 
 eqtiity, and it takes cognizance of a case for one purpose, it will 
 retain jurisdiction of the suit for all purposes, and thus afford 
 the plaintifE full relief in one suit, though there may be some 
 parts of the case as to which a court of law would have jurisdic- 
 tion and would afford an adequate remedy.* The court pursues 
 this course to avoid a multiplicity of suits. Thus equity has ju- 
 risdiction by injunction to prevent irreparable acts of injury to 
 land, and, having jurisdiction on this ground, it will go on and 
 give full relief, though in doing so it be necessary to decide be- 
 tween two adverse claims of title.' So, where equity has taken 
 jurisdiction for the purpose of enforcing the specific performance 
 of a contract, the court will do full justice, and award damages 
 for a breach thereof by an issue of quantum damnificahis, or by a 
 master, at its discretion.' 
 
 » Yates V. Stewart, 39 W. Va. 124, 19 S. E. Rep. 423; Hanly v. Waterson, 
 39 W. Va. 214, 19 S. E. Rep. 526; Grubb v. Sharkey, 90 Va. 831, 20 S. E. 
 Rep. 784; Beecher v. Lewis, 84 Va. 630, 6 S. E. Rep. 367; Bettman v. Har- 
 ness, 42 W. Va. 433, 26 S. E. Rep. 271; Chrislip v. Teter, 43 W. Va. 356, 27 
 S. E. Rep. 288; Watson v. Watson, 45 W. Va. 290, 31 S. E. Rep. 939; Wal- 
 ters V. Farmers' Bank of Virginia, 76 Va. 12; Robinson v. Braiden, 44 W. 
 Va. 183, 28 S. E. Rep. 798; Hotchkiss v. Fitzgerald Patent Prepared Plaster 
 Co., 41 W. Va. 357, 23 S. E. Rep. 576; Carpenter v. Osborne, 102 N. Y. 552, 
 7 N. E. Rep. 823, 827. 
 
 = Bettman v. Harness, supra. ^ Grubb v. Sharkey, supra. 
 
472 BQUITY PRINCIPtBS. 
 
 CHAPTER XXXII. 
 
 NEW TRIAL. 
 
 ?. 351. Principles determining equity jurisdiction as to new trial. 
 
 352. In granting a new trial, equity does not investigate the legality of 
 
 the judgment at law. 
 
 353. New trial because of after-discovered evidence. 
 
 354. The allegations of the bill as to after-discovered evidence. 
 
 355. How equity affords relief in matters of new trial 
 
 § 351. Principles determining equity jurisdiction as to nevr 
 trial— 
 The great underlying principle upon which a court of equity 
 makes interposition, to grant relief to a judgment at law by means 
 of a new trial, is the want of opportunity to make application 
 therefor to the court of law wherein the trial was had.' Hence, 
 a party must never rely upon a court of equity tp award him a 
 new trial if, by the use of due diligence, the matter upon which 
 he seeks to obtain relief in equity could have been brought to 
 the attention of the trial court in sufficient time to have urged 
 a motion there for a new trial of his case, or to have in any 
 manner obtained relief in the law court ;^ nor can he obtain relief 
 in equity even as to a void judgment if a court of law will at 
 all afford him a remedy against the same.^ A new trial in 
 equity cannot be had for the mere asking. Particular equitable 
 grounds pointed out by equity law must exist and be clearly 
 
 ' Graham & Waterman, New Trials, pp. 1483-1523; Shields v. McClung, 6 
 W. Va. 79, 90, 91; Knapp v. Snyder, 15 W. Va. 434; i Bart., Ch. Pr. 42; 
 Goolsby V. St. John, 25 Gratt. 159; Oswold v. Tyler, 4 Rand. 19. 
 
 ' Gar'''.;ner & Bowling v. Hardy & Simms, 12 Gill & Johnson, 382; i Bart., 
 Ch. Pr., 42, 43; Faulkner v. Harwood, 6 Rand. 125; Foushee v. I<ea, 4 Call, 
 279; Knifong y. Hendricks, 2 Gratt. 212; Cochran v. Street, 1 Wash. 79; 
 Darmstadt v. Wolfe, 4 H. & M., top p. 246, marg. p. 248. 
 
 3 K. & O. Ry. Co. v. Ryan, 31 W. Va. 364; s. c. 6 S. E. Rep. 924; Crocker 
 
 V. Allen, 34 S. C. 452; s. c. 14 S. E. Rep. 650; Gillam v. Arnold, 35 S. C. 
 
 612; s. c. 14 S. E. Rep. 938; Howell v. Thompson, 34 W. Va. 794; s. c. 12 
 
 S. E. Rep. 1088; Bonney v. Bowman, 63 Miss. 166; Texas Mexican Railway 
 
 I Co. V. Wright, 31 L. R. A. 200. 
 
NEW TRIAL. 473 
 
 proven to authoAze the interposition of a court of chancery to 
 afford a new trial. ^ 
 
 It is also a fundamental principle founded in sound sense and 
 public policy, that a court of chancery will not entertain a party 
 seeking relief against a judgment at law, in consequence of his 
 default, upon grounds which might have been successfully taken 
 in a court of law, unless some reason founded in fraud, accident, 
 surprise or some adventitious circumstances beyond the control 
 of the party be shown why the defense at law was not made.^ 
 But the converse of all these principles is alike true, that where 
 a party has not had an opportunity to make an application to a 
 court of law for a new trial or where for any reason he could not 
 urge his grounds for a new trial in the law court, equity will afford 
 him relief. As where there has been a trial and judgment at 
 law, and the right of appeal has been cut off by the death of the 
 presiding judge before signing the bill of exceptions, if such 
 judgment be unjust and oppressive, a court of equity will award 
 a new trial;' or where the justices composing a court before which 
 a cause is tried, having left the bench after the verdict is ren- 
 dered so that a motion for a new trial could not be made to them, 
 a court of equity has jurisdiction to award it;* or because of pop- 
 ular prejudice against a party at the time of trial, and coming to 
 the knowleege of the party after verdict, and too late to use it 
 in a court of law,* but local prejudice cannot be made the ground 
 of a new trial if, by the use of due diligence, it can be ascertained in 
 time to move for a change of venue;* or where a verdict has been 
 obtained by tampering with the witnesses of the opposite party, 
 the fraud not being discovered until it was too late to move for 
 a new trial in the law court, equity will interpose its aid;' or 
 where a case is tried before a justice, and a bill of exceptions 
 
 ' Graham v. Citizens' Nat. Bank, 45 W. Va. 701; 32 S. E. Rep. 245, 
 
 = Knapp V. Snyder, 15 W. Va. 434, 441; Bloss v. Hull, 27 W. Va. 503; 
 Green & Suttle v. Massie, 21 Gratt. 358; Hazeltine v. Brickey, 16 Gratt. 120; 
 Newman v. Shereck, 58 111. App. 328; Sperry v. Gibson, 3 W. Va. 522; 
 Braden v. Reitzenberger, 18 W. Va. 286. 
 
 3 Kans. A. V. Ry. Co. v. Fitzhugh, 61 Ark. 341 ; s. c. 33 S. W. Rep. 960. 
 See also Foushee v. Ivca, 4 Call, 279; Grafton & G. R. Co. v. Davisson, 45 W. 
 Va. 12, 29 S- E. Rep. 1028. 
 
 •• Knifong v. Hendricks, 2 Gratt. 212. 
 
 5 Darmstadt v. Wolfe, 4 Henning & Munford, 248. 
 
 ♦ Graham v. Citizens' Nat. Bank, 45 W. Va. 701, 32 S. E. Rep. 245. 
 
 ? I Bart., Ch. Pr., 50. 
 
474 EQX7ITY PRINCIPLBS. 
 
 essential to enable a party to obtain a writ of certiorari is lost, 
 if signed, or, if not signed, the justice died without signing it, 
 and there appears probable ground for a writ of certiorari;^ or 
 where a motion for a new trial was by consent postponed to an 
 adjourned session which was prevented by accident from being 
 held, and the mover lost his right of appeal, equity will aford 
 relief.' 
 
 The illustrations we have thus far used apply to those cases 
 where a trial has already taken place, and not to the cases where 
 judgment was taken by default and no trial actually had. In 
 cases of this sort the doctrine, announced in Knapp v. Snyder,' 
 applies, as already announced,* that the ground upon which to 
 obtain in equity a trial of the cause must be founded in fraud, 
 accident, or surprise; or some adventitious circumstances beyond 
 the control of the party must be shown why the defense at law 
 was not made. These various grounds cannot be defined, owing 
 to the diverse forms which they may or do assume, and the extent 
 of their application can best be exemplified by the use of illustra- 
 tive decisions. Thus equity will award a new trial, where a de- 
 fendant, who had an adequate defense at law, has been prevented 
 from resorting to it by a fraudulent representation or promise by 
 the plaintiff, that he would take no judgment against him, and 
 he need not employ counsel in the case;' or where the plaintiff's 
 attorney brings a case on for trial in violation of a written 
 stipulation to give a certain notice of an intention to try the case 
 and thereby obtains an unjust judgment;^ or where the defendant 
 has been proceeded against by order of publication and the same 
 contains a false statement as to the cause of action, and a judg- 
 ment has been obtained, which is unjust and oppressive and the 
 time for relief at law has elapsed, equity will take jurisdiction 
 and relieve against such judgment.^ 
 
 Mr. Barton says that among the circumstances mentioned by 
 the decided cases as insufiScient to sustain the application for 
 equitable reUef are the following: "When the trial took place 
 in the absence of complainant or his attorney, unless it was 
 
 ' Grafton & G. R. Co. v. Davisson, supra. 
 
 ' Harkey v. Tillman, 40 Ark. 551. 
 
 3 IS W. Va. 434. 4 Ante, 472. 
 
 5 Knapp V. Snyder, supra; Shields v. McClung, 6 W. Va. 79. i 
 
 ' Foote V. Despain, 87 111. 28. 
 
 ' Dunlap V. Steere, 92 Cal. 344; s. c. 16 L. R. 361. 
 
NBW TRIAt. 475 
 
 shown, not only that he was prevented from appearing by ac- 
 cident, but that there were no laches on his part, at the time or 
 afterwards; where the case was undefended in consequence of 
 the illness or death of the party or his attorney, the presumption 
 being that a continuance would have been granted, or a new 
 trial awarded on a motion to that effect in the original forum; 
 where it was claimed that an attorney failed to appear because 
 of the miscarriage of a letter; when the complainant was pre- 
 vented from reaching the court with his witnesses by the swell- 
 ing of an intervening stream, it not appearing that he could not 
 have arrived in time to move for a new trial; when the party was 
 surprised by the false or erroneous statement of his own or the 
 other party's witness, although when application is made on 
 this ground the courts favor defendants rather than plaintiffs; 
 where one goes to trial in the absence of a witness, or in re- 
 liance on a witness who is intoxicated, and cannot state the facts 
 clearly or correctly; where the party from ignorance, or other 
 cause, has mistaken the law, or where he was ignorant of the 
 facts which are set forth in his bill as constituting a defense, un- 
 less it is shown that he could not have ascertained the truth in 
 time to lay it before the jury."^ 
 
 A party without showing more will not be permitted to contra- 
 dict the solemn records of a court, on the ground that the state- 
 ments therein are false, that they show that the proof was heard, 
 when in fact no proof was heard, and charge that there was con- 
 sequently fraud in both the party and the court in so entering the 
 judgment.'' Nor should a new trial be awarded, because since the 
 trial it has been ascertained that one of the jurors was not a citizen 
 and resident of the county a year before the trial; when neither 
 party, when the juror was sworn, objected to his serving as a 
 juror, and when it does not appear that the party applying for a 
 new trial was in any manner injured by the juror serving on the 
 jury, and when it further appears that such party had such 
 knowledge of the juror before he was sworn, as made it grossly 
 negligent in him to fail to inquire, before he was sworn as a 
 juror, into his qualifications as such.^ And a surety cannot rely 
 on his ignorance of a substantial defense, though known to 
 the principal, arising out of transactions between the plaintiff 
 
 ' Bart., Ch. Pr. 49, 50. 'Braden v. Reitzenberger, 18 W. Va. 286. 
 
 3 Zidcefoose v. Kuykendall, 12 W. Va. 23. 
 
476 EQUITY PRINCIPLES. 
 
 iu the common law suit and the principal, as a reason for open- 
 ing a judgment against the surety, unless he alleges in his bill, 
 and shows by evidence that he took proper measures to ascertain 
 the true state of the case, and prepare his defense in the common 
 law action, or that he was prevented by circumstances which 
 rendered it impossible to take such measures.^ 
 
 In connection with the principles here laid down and illustra- 
 tions thereof given, it is said in Goode v. I/Ove,^ that a new trial 
 ought never to be granted where it appears that the party askiiig 
 it, has had a fair trial on the real merits of the case, and that jus- 
 tice has been done. 
 
 § 352. In granting new trials equity does not investigate 
 the legality of the judgment at law — 
 In Braden v. Reitzenberger.* cited in the foot-notes, Johnson 
 P., says: "It has been justly said, that where application is made 
 for relief against a judgment, the province of the chancellor is 
 to test the conscience of the parties and not the legality of the 
 judgment, nor to correct the errors, which may have been com- 
 mitted by the court. A different rule would render the jurisdic- 
 tion of chancery general by converting it into a court, to whick 
 an appeal might be had in every instance. Leading Cases in 
 Equity, Vol. II, Part II, and cases cited. If an application could 
 be made to a court of chancery upon the ground that there was 
 no evidence in the case to support the judgment, why not upon 
 the ground that there was no evidence as to a part of the recov- 
 ery, or that the evidence was insufficient to support the judg- 
 ment?" 
 
 § 353- New trial because of after-discovered evidence — 
 
 Courts of equity, as well as courts of law, sometimes grant 
 new trials on the ground of after-discovered evidence, but always 
 with great reluctance and never except under special circum- 
 stances, which may be summed up thus: (i). The evidence must 
 have been discovered since the trial. (2). It must be evidence 
 that could not have been discovered before the trial by the plain- 
 tiff or defendant, as the case may be, by the exertion of reason- 
 able diligence. (3). It must be material in its object, and suck 
 
 ■ Smith V. McClain, 11 W. Va. 655: Sayre v. King, 17 W. Va. 665. 
 " 4 Leigh, 635. 3 18 W. Va. 286. 
 
NBW TRIAL. 477 
 
 as ought on another trial to produce an opposite result on the 
 merits. (4). It must not be merely cumulative, corroborative or 
 collateral.' 
 
 Kvidence is said to be cumulative in its relation to the evidence 
 on the trial, when it is of the same kind and character. If it is 
 dissimilar in kind, it is not cumulative, in a legal sense, though 
 it tends to prove the same proposition; and the discovery of evi- 
 dence, though not strictly cumulative, is not sufficient, if it does 
 not bear directly on the issue, but is collateral only:' 
 
 A chancery court considering a bill for a new trial on the ground 
 of after-discovered evidence, will not on that ground interfere 
 with the decision of the trial court, unless it has before it all the 
 evidence heard in the trial court; and the observance of this rule 
 is necessary to prevent the granting of new trials in consequence 
 of the discovery of merely cumulative facts and circumstances re- 
 lating to matters which may have been controverted on the former 
 trial.' 
 
 § 354. The allegations of the bill as to after-discovered 
 evidence — 
 
 In a bill for relief against a judgment at law by means of a 
 new trial on the grounds of after-discovered evidence, the plain- 
 tiff should allege all those matters of fact upon which relief in 
 such cases is granted, and not mere general averments or only con- 
 clusions of law.* 
 
 § 355. Hovr equity affords relief in matters of new trial — 
 
 Upon a bill in chancery to enjoin a judgment at law, and for 
 a retrial, there must not be a decree before such retrial annulling 
 the judgment and g^ranting a new trial in the law court; but the 
 
 ' Wynn v. Newman, 75 Va. 811; Zickefoose v. Kuykendall, 12 W. Va. 
 23; Bloss V. Hull, 27 W. Va. 503; Whitehurst's case, 79 Va. 556; Booth v. 
 Mcjilton, 82 Va. 827; Halstead v. Horton, 38 W. Va. 727; s. c. 18 S. E. Rep. 
 953; HaU V. Lyons, 29 W. Va. 410; s. c. i S. E. Rep. 582; Johnson v. Palman, 
 87 Ga. 244; s. c. 13 S. E. Rep. 637; White v. Waid, 35 W. Va. 418; s. c. 14 
 S. E. Rep. 22; Garden v. Bank of West Va., 34 W. Va. 38; s. c. 11 S. E. 
 Rep. 716; Swisher v. Malone, 31 W. Va. 442; s. c. 7 S. E. Rep. 439. 
 
 ' Wynn v. Newman's Adm'r, 75 Va. 812. 
 
 3 Wjmn V. Newman, supra . 
 
 * Sayre v. King, 17 W. Va. 562; Halstead v. Horton, 38 W. Va. 727; s. c. 
 18 S. E. Rep. 953; Knapp v. Snyder, 15 W. Va. 434. 
 
478 EQUITY PRINCIPLES. 
 
 judgment should stand as security for. what may be found to be 
 justly due, and until after the retrial, and the decree should direct 
 an issue or issues as the case may require, to be tried in the circuit 
 court, to find what the nature of the case may demand, and upon 
 the verdict coming in, the court should perpetuate or dissolve, 
 either wholly or partially, the injunction awarded to the judg- 
 ment against which plaintiff has sought relief.' And where an 
 injunction to a judgment is perpetuated only to a part of it, or 
 the reversal is only as to a part of it, the lien of the part not af- 
 fected continues from the date of the judgment." 
 
 ■ Grafton & G. R. Co. v. Davisson, 45 W. Va. 12, 29 S. E. Rep. ioz8; Wynn 
 V. Newman, supra; Ambler v. Wyld, 2 Wash., marginal p. 37; Pickett v. 
 Horris, Id., marg. p. 255. ''Idem, 
 
NOTICB AND RECORDATION. 479 
 
 CHAPTER XXXIII. 
 NOTICE AND RECORDATION. 
 
 ? 356- Origin and scope of out recording acts. 
 
 357. Who are purchasers -within the meaning of the recording acts. 
 
 358. Who are creditors -within the meaning of the recording acts. 
 
 359. The property and interests to -which the recording acts do or do not 
 
 apply. 
 
 360. The character of -writing that may be properly recorded. 
 
 361. Where deed or other instrument must be recorded. 
 
 362. What is a sufficient recordation of a -writing under our recording 
 
 acts. 
 
 363. Notice by subsequent purchasers before the recordation of the in- 
 
 strument of conveyance. 
 
 364. What constitutes actual notice. 
 
 365. What matters contained in record sufficient to put party on inquiry 
 
 so as to constitute notice to him. 
 
 366. As to lis pendens notice. 
 
 § 356. Origin and scope of our recording acts — 
 
 Under this head -we necessarily include the consideration of our 
 recording acts as they are indissolubly connected with the subject 
 or doctrine of notice. It is difficult to perceive how they can 
 well be treated separately. 
 
 Our principal law relating to the recordation of instruments is, 
 found in chapter seventy- four of the Code of 1891, the most im- 
 portant part of which is contained in sections four and five,^ 
 which provide as follows: 
 
 "Any contract in writing, made in respect to real estate or 
 goods and chattels, in consideration of marriage, or made for the 
 conveyance or sale of real estate, or a term therein of more than 
 five years, shall, from the time it is duly admitted to record, be, 
 as against creditors and purchasers, as valid as if the contract 
 was a deed conveying the estate or interest embraced in the con- 
 tract. Every such contract, every deed conveying any such es- 
 tate or term, and every deed of gift, or deed of trust or mort- 
 gage, conveying real estate or goods and chattels, shall be void 
 as to creditors and subsequent purchasers, for valuable considera- 
 
 ' See Code, 1891, pp. 650, 651. 
 
480 BQUITY PRINCIPI,ES. 
 
 tion without notice, until and except from the time that it is duly 
 admitted to record in the county wherein the property embraced 
 in such contract or deed may be.* This statute is taken substan- 
 tially from the statute of Virginia, which latter was modeled after 
 the statute, 2 Ann. Ch. 4, commonly called the register act.' An 
 ■ examination of the statute and authorities relating thereto, will 
 show that the record of a writing takes the place of actual notice 
 of what the writing contains, and is fully as effectual and valid!' 
 it is notice to all the world after recordation.* So, the object 
 and purpose of the registry acts is to give notice to subse- 
 quent purchasers and creditors of the rights and interests of 
 him who places the instrument on record with reference to the 
 property to which it relates, and that third persons will thus be 
 protected from loss or injury should they consult the records of 
 the county of the situs of the property with which they propose 
 to deal. In a word, the object of the law is to protect subse- 
 quent creditors and purchasers.* 
 
 ' Code, 1891, chap. 74, sees. 4 and 5. 
 
 » Doswell V. Buckhanon's Ex'r, 3 Leigh, 365, 379; Deleplain & Son v. 
 Wilkinson & Co., 17 W. Va. 242, 266, 267. 
 
 ' 2 Bart., Ch. Pr. 1002; Conway v. Sweeney, 24 W. Va. 643. « Idem; 
 
 5 Siter, Price & Co. v. McClanahan et al., 2 Gratt. 280, 309. Our law 
 unquestionably, in its present state, avoids deeds au<i -conveyances, if unreg- 
 istered, to the prejudice of subsequent purchasers and incumbrancers, in 
 good faith; and, when duly registered, makes them effectual as notice to all 
 the world. But the notice is of the contents of the instrument and nothing 
 more. Not of any secret condition or trust, or equity between the parties. 
 Frost V. Beekman, i Johns. Ch. R. 288, 18 Johns. R. 544; s. c. Parkit. v. 
 Alexander, 2 Johns. R. 510; St. Andrew's Church v. Tompkins, 7 Johns. Ch. 
 R. 14; Davison v. Waite, 2 Munf. 527; Colquhoun v. Atkinson, 6 Munf. 550; 
 Bell V. Hammond, 2 Leigh, 416. 
 
 If this were otherwise, then the registry, instead of being a protection, 
 would be a snare to others dealing with the subject. As against bona fide 
 subsequent purchasers and incumbrancers, a registered deed or conveyance 
 must be taken to express truly the agreement between the parties; and all 
 extrinsic stipulations, dealings and arrangements can stand on no better 
 footing than an unregistered contract; and if by parol, of a contract incapa- 
 ble of registration. They cannot operate to the prejudice of the subsequent 
 purchaser or incumbrancer, but may prove beneficial to him, by destroying 
 the effect of the deed of conveyance as a registered instrument. Thus if a 
 deed absolute on its face, and unaccompanied by any defeasance be in- 
 tended and agreed by the parties to operate as a mortgage, it can have no 
 effect, in either character, against a subsequent purchaser or incumbrancer 
 
NOTICE AND RBCORDATION. 48 1 
 
 § 357. \Vho are purchasers within the meaning of the 
 recording acts — 
 
 The term purchaser includes all persons who by contract have 
 acquired a direct interest in the property, whether by lien or by 
 mortgage, or by deed of trust, or by absolute conveyance, in 
 contradistinction to creditors, who are persons claiming debts or 
 demands, and have no lien at all on the property in question, or 
 one arising by act of the law and not by contract.^ But the pur- 
 chaser must be a subsequent one for value without notice of the 
 existence of the writing.'' And if a person is a purchaser for a 
 valuable consideration without notice no party can occupy a 
 higher ground in a court of equity, and if he can maintain such 
 position his title to the property is established and his position is 
 impregnable.' 
 
 But to come within the meaning of the term "purchaser," he 
 must be a complete one;* and to constitute him a complete bona 
 fide purchaser without notice, it must appear, (i) that he is a 
 purchaser for a valuable consideration; (2) that the consideration 
 has actually been paid; (3) that he has received, or is best enti- 
 tled to receive, a conveyance of the property; and (4) that these 
 essentials all occurred prior to his having notice of the adverse 
 claim;' and (5) being such purchaser, he will not be affected by 
 
 ■who has not actual notice of the true nature of the transaction. Day v. Dun- 
 ham, 2 Johns. Ch. R. 182, 15 Johns. R. 555. 
 
 See, also, Warner v. Syme, 7 W. Va. 474, 487-489; Thorn v. Phares, 35 
 W. Va. 771; s. c. 14 S. E. Rep. 399. 
 
 ' 2 Bart. Ch. Pr. 984. That trustee and cestui que trust are purchasers, 
 see Chapman v. Chapman, 92 Va. 537; s. c. 21 S. E. Rep. 813; Harden v. 
 Wagner, 22 W. Va. 356, 365; Weinberger v. Rempe, 15 W. Va. 831. 
 
 ^ 2 Bart Ch. Pr. 984. 
 
 3 Christian, J., in his able opinion in the case of Briscoe v. Ashby, 24 
 Gratt. 454, 473. * 2 Bart. Ch. Pr. 985. 
 
 s l,amar v. Hale, 79 Va. 147 ; Preston's Adm'r v. Nash, 76 Va. i; Doswell 
 V. Buckhanon, 3 Leigh, 365; Mut. Assu. Soc. v. Stone, 3 Leigh, 218; Davis 
 V. Beasley, 75 Va. 491. If a purchaser receive notice of the prior convey- 
 ance before both of these acts are perfected, it has been said that he ought 
 to forbear to proceed until the equity is inquired into, or else he will take 
 subject thereto, and whatever he does after notice, he does mala fide, and it 
 cannot avail him. This rule, say some of the text writers and decided 
 causes, is in consonance with justice as well as in strict analogy witli the 
 principles of the courts of equity. It rests upon the reasonable maxim, qui 
 priorin tempore potior est in jure, and so far has it been carried that, although 
 
 31 
 
482 EQUITY PRINCIPLES. 
 
 any latent equity by lien, incumbrance, trust, fraud, or other 
 claim.* 
 
 And a purchaser from a subsequent purchaser for value with- 
 out notice is protected even though the former have notice; and 
 also if one purchase for value and without notice from a pur- 
 chaser who has notice, he is likewise entitled to be protected.' 
 
 But the act of recordation does not apply to purchasers of 
 different tracts or parcels of land from the same vendor, but 
 only to subsequent purchasers of the same subject as that em- 
 braced in the instrument declared void.' 
 
 § 358. Who are creditors \vithin the meaning of the re- 
 cording acts — 
 
 The words "creditors" and "purchasers," where used in any 
 previous section of this chapter,* shall not be restricted to the 
 protection of creditors of, and purchasers from, the grantor, but 
 shall extend to and embrace all creditors and purchasers who, 
 but for the deed or writing, would have had title to the property 
 conveyed, or a right to subject it to their debts.* And our 
 supreme court of appeals in construing our recording acts holds 
 that the word creditors means all creditors, who but for the deed 
 or contract would have "a right to subject the land embraced 
 therein to the payment of their debts.' 
 
 It will be observed that the creditors protected from the unre- 
 corded instrument are those who may subject the land to the pay- 
 ment of their debts. Therefore the creditor contemplated by the 
 acts under consideration must be those who have some lien, by 
 judgment or otherwise, which entitles him to charge the subject 
 conveyed specifically.' And an examination of the adjudged 
 cases leads firmly to this opinion, as in all these cases the creditor 
 
 the purchaser had paid every cent of the purchase-money, and the hopeless in- 
 solvency of his vendor would prevent his ever recovering it back, yet if he has 
 not completed his title by getting a conveyance prior to his notice of the 
 prior equity he must stop, and will not be permitted to go on to secure him- 
 self by obtaining the legal title from the common vendor. 
 
 ■ Turk V. Skiles, 45 W. Va. 82, 30 S. E. Rep. 234. 
 
 ' 2 Bart. Ch. Pr. 985. 3 Renick v. Ludington, 20 W. Va. 511. 
 
 « Reference is here made to chap. 74 of the Code of 1891. 
 
 s Code, 1891, chap. 74, sec. 9. « Snyder v. Martin, 17 W. Va. 276. 
 
 7 McCandlish v. Keen, 13 Gratt. 615. 
 
NOTICE AND RECORDATION. 483 
 
 ■was a lien holder of some sort as to the subject-matter sought 
 to be charged by him.^ 
 
 But as to creditors and purchasers, so far as notice is concerned, 
 the recording acts operate very differently. To be protected the 
 purchaser must be one without notice.' But it is immaterial 
 whether the creditor has notice or not, when the debt was con- 
 tracted. The statute declares it void as to all creditors, without 
 discriminating as it does in the clause touching purchasers, so 
 far as regards notice;' so that an unrecorded deed is void as to 
 creditors whether they have notice of it or not;* while it is valid 
 as to purchasers who have notice of it.* 
 
 § 359. The property and interests to which the recording 
 acts do or do not apply — 
 Our recording acts do not apply to mere choses in action 
 but only to personal property that is visible, tangible and mov- 
 able.* Hence, the assignment of a note or other chose in action 
 need not be recorded to make the same good as to third parties.' 
 Of course, it needs no authority in support of the statement that 
 these acts apply to written contracts and deeds in reference to 
 real estate. They do not, however, contemplate the mere equi- 
 ties of a party. Thus a purchaser of land by parol contract, and 
 who has been put in possession thereof, or where the contract 
 has been so far executed as to vest in him the right to compel 
 his vendor to execute the parol contract in a court of equity, has 
 an equitable right in said land so purchased, which a court of 
 equity will fully protect against the lien of a subsequent judg- 
 ment creditor of his vendor.* And this is so, notwithstanding 
 the fact that shortly before the judgment is recorded in the 
 
 ■ Pack V. Hansbarger, 17 W. Va. 313; Snyder v. Martin, idem. 276; Dela- 
 plain V. Wilkinson, idem. 242; Anderson v. Nagle, 12 W. Va. 98; Cox v. 
 Wayt, 26 W. Va. 807; Bank v. Neal, 28 W. Va. 744. 
 
 ' 2 Bart., Ch. Pr. 981. ' Delaplain & Son v. Wilkinson, 17 W. Va. 242. 
 
 ■• Abney v. Ohio Lumber & Mining Co., 45 W. Va. 446, 32 S. E. Rep. 256; 
 Guerrant v. Anderson, 4 Rand. 208. 
 
 5 Idem. ' Fisher v. Tingle, 20 W. Va. 487. 
 
 7 Idem; Tuck v. Skiles, 45 W. Va. 82; 30 S. E. Rep. 234. 
 
 » Pack V. Hansbarger, 17 W. Va. 313. See also Coleman v. Cocke, 6 Rand, 
 618, 649, and opinion of Haymond, J. , in Pack v. Hansbarger, supra, at pp. 
 323-325; Snyder v. Martin, 17 W. Va. 276; Snyder v. Botkin, 37 W. Va. 
 355. 17 S. E. Rep. 591- 
 
484 BQUITY PRINCIPLBS. 
 
 judgment lien docket, the parol vendee obtains a deed for the 
 land from his vendor, which he fails to record.^ But a written 
 contract for the sale or conveyance of land is as much within the 
 purview of the recording acts as to creditors and subsequent pur- 
 chasers for a valuable consideration without notice, as unre- 
 corded deeds are.'' 
 
 § 360. The character of writing that may properly be re- 
 corded — 
 
 Th,i statute of our state provides for admitting to record a 
 power of attorney;' any writing as to any person whose name is 
 signed thereto, upon the request of any person interested therein, 
 upon a certificate of his acknowledgment before any proper offi- 
 cer as designated by law;* any contract in writing, made in re- 
 spect to real estate or goods and chattels, in consideration of 
 marriage, or for the conveyance or sale of real estate, or a term 
 therein of more than five years;® any deed conveying such estate 
 or term; any deed of gift, or deed of trust or mortgage, convey- 
 ing real estate or goods and chattels;* any loan of goods and 
 chattels where the possession remains with the loanee as long as 
 five years;^ any sale of goods and chattels reserving the title 
 until the same is paid for, or otherwise, and possession be de- 
 livered to the buyer;' a mechanic's lien;' a laborer's lien;^" a 
 homestead exemption;^^ and a lis pendens notice of an action, suit, 
 attachment or proceeding to subject real estate to the payment of 
 any debt or liability, upon which a previous lien shall not have 
 been acquired in some one or more of the methods prescribed 
 by law.^* 
 
 The various matters here enumerated come within the purview 
 of our recording acts, and should be admitted to record in order 
 to secure and protect the rights of the parties interested against 
 the acts of innocent third parties. 
 
 An instrument cannot be admitted to record until it has been 
 acknowledged or proved in the manner prescribed by law, and if 
 
 " Snyder v. Botkin, supra. 
 
 ' Pack V. Hansbarger, 17 W. Va. 313, at page 335; Delaplain v. Wilkinson, 
 17 W. Va. 242, 270; Anderson v. Nagle, 12 W. Va. 98. 
 3 Code, chap. 73, sec. i. * Idem, sec. 3. s Idem, chap. 74, sec. 4. 
 
 « Idem, sec. 5. ^ Idem, sec. 3. ' Idem. » Code, 1891, chap. 75, sec. 5. 
 " Idem, sec. 9. "Idem, chap. 41, sec. 31. " Idem, chap. 131, sec. 3. 
 
NOTICE AND RBCORDATION. 485 
 
 admitted to record without this having been done, it will not 
 even be constructive notice to any one.' 
 
 And the recordation should be made by the proper officer, else 
 the same will be ineffectual;* and the acknowledgment taken be- 
 fore and certified by a proper officer and who is not a party to 
 the deed; thus it is well settled that the grantee in a deed or the 
 beneficiary under it, is not authorized as an officer to take the 
 acknowledgment of the deed with a view to its recordation, and 
 that the certificate of such acknowledgment furnishes no authority 
 for admitting the instrument to record; and therefore a recorda- 
 tion based upon it is without effect as notice by construction 
 under the registry laws;^ so a certificate of acknowledgment to 
 the deed of a corporation which does not show that the officer or 
 agent executing it was sworn and deposed to the matters required 
 by statute * is fatally defective, and does not entitle such deed to 
 be recorded;' but where the instrument is one which may be 
 properly admitted to record, it is sufficient if the party lodges it 
 with the proper officer, and it has been by him received for re- 
 cordation — ^he has then done all he can do to comply with the re- 
 cording acts.' 
 
 And the recordation of an instrument which the officer record- 
 ing it has no power to admit to record is of no force or effect, 
 and a copy of it cannot be used as evidence in any court of jus- 
 
 » 2 Bart. Ch. Pr. 992; Bank v. Neal, 28 W. Va. 744; Cox v. Wayt, 26 W. 
 Va. 807; Peterson v. Ankrom, 25 W. Va. 56. 
 
 ' Herring v. Lee, 22 W. Va. 661. 
 
 3 Davis V. Beasley, 75 Va. 491, 495; Veneer Co. v. Kurth, 90 Va. 737, 19 
 S. E. Rep. 878; Nicholson v. Charity School, 93 Va. loi, 105, 24 S. E. Rep. 
 899; Iron Belt Building & Loan Ass'n v. Groves, 96 Va. 138, 31 S. E. Rep. 23. 
 
 ■* Code, chap. 73, sec. 5. 
 
 5 Abney V. Ohio Lumber and Mining Co., 45 W. Va. 446, 32 S. E. Rep. 
 256. 
 
 ' Beverley v. Ellis & Allen, i Rand. 102; Merrick v. Wallace, 19 111. 486; 
 Riggs V. Boyhan, 4 Biss. 445; Oats v. Watts, 28 Ark. 244; Throckmorton v. 
 Prince, 28 Tex. 605; Franklin v. Cannon, i Root, 500; Hartmeyer v. Gates, 
 I Root, 61; McDonald v. Leach, Kilry (Conn.), 72; Judd v. WoodruflF, 3 
 Root, 298; Harrold v. Simons, 9 Mo. 326; Barney v. Little, 15 Iowa, 527; 
 Dodge V. Potter, 18 Barb. 193; Alvis v. Morrison, 63 111, 181: Calvin v. Bow- 
 man, 10 Iowa, 529; White v. Hampton, 13 Idem, 259; Bostick v. Powers, 12 
 Idem, 456; Shrae v. Lawson, 22 Wis, 142; Carper v. McDowell, 5 Gratt. 212; 
 Horsely v. Garth, 2 Gratt, 471, 472; Thomas v. Stewart, 91 Va. 694; s. c. 22 
 S. E. Rep. 511. But see 2 Bart. Ch. Pr. 997, 998, 999, 1000; Mercantile 
 Co-Operative Bank v. Brown, 96 Va. 614, 32 S. E. Rep. 64. 
 
486 BQUITY PRINCIPtBS. 
 
 tice.^ A contract in writing concerning real estate, in order to 
 be recorded and thus preserve the rights of parties thereunder, 
 need not be under seal.* Hence a paper made for a deed of trust 
 conveying land to secure a debt, signed by the grantor but with- 
 out a seal, though not effectual as a deed of trust at law, is an 
 equitable mortgage, enforceable in equity, and may be recorded 
 under section four, chapter seventy-four, of the Code, and, when 
 recorded, is a valid lien against subsequent purchasers and cred- 
 itors.' And an executory contract duly admitted to record, made 
 concerning real estate, will protect the rights of the parties under 
 it against subsequent purchasers and creditors, from the time of 
 its admission to record.* But the instrument, to constitute 
 notice, must describe the land with that degree of certainty 
 which will designate the land to which it refers, and the descrip- 
 tion must not be vague and indefinite.* 
 
 § 361. Where deed or other instrument must be re- 
 corded — 
 
 The intention and language of our recording acts require that 
 the instrument be admitted to record in the county where the 
 property is situate;* or, being personal property and removed to 
 another county, it must also be admitted to record in such latter 
 county within three months after its removal.^ 
 
 The clerk is without any authority to record a deed which does 
 not convey land lying in his county;' and where a deed conveys 
 several tracts of land lying separately, in different counties, the 
 recordation thereof in only one of the counties is not effectual in 
 regard to the tract or tracts lying in the other counties, within 
 the true intent and meaning of our recording acts.' The deed 
 must be recorded in each county where any part of the property 
 may be. Under the decision of our supreme court of appeals in 
 
 ' Johnson v. Griswold and Rogers, 8 W. Va. 240, 243. 
 
 " Atkinson v. Miller, 34 W. Va. 115; s. c. 11 S. E. Rep. 1007. 
 
 3 Atkinson v. Miller, supra, overruling Piatt v. Clemens, 4 W. Va. 443, 
 and disapproving point 2 of the syllabus in Shattuck v. Knight, 25 W. Va. 
 59°- 
 
 ■• Thorn v. Phares, 35 W. Va. 771; s. c. 14 S. B. Rep. 399. 
 
 5 Lewis v. Madisons, i Munf. 303. « Code, 1891, chap. 74, sec. 5. 
 
 7 Idem, sec. 7. 
 
 ' Pollard's Heirs v. Lively, 2 Gratt. 216; Blackford v. Hurst, 26 Gratt. 203. 
 
 ' Horseley v. Garth & Colquit, 2 Gratt. 471. See Code, 1891, chap. 75, 
 sec. 6. 
 
NOTICB AND RBCORDATION. 487 
 
 Ballard v. Great Western Mining & Manuf'g Co./ it is held tliat 
 a mortgage of personal property duly recorded in the State of 
 Kentucky, and the property covered by the mortgage is subse- 
 quently brought into a county in this state, and the mortgage 
 not recorded in the county in this state where the property is lo- 
 cated, that such chattel mortgage is not good against an attach- 
 ing creditor of the mortgagor.' 
 
 § 362. What is a sufficient recordation of a wrriting under 
 our recording acts — 
 
 Our statute provides that "every such writing, when admitted 
 to record, shall, with all certificates of acknowledgment, and all 
 plats, schedules and other papers thereto annexed or thereon in- 
 dorsed, be recorded by or under the direction of the clerk of the 
 county court, in a well-bound book, to be carefully preserved; 
 and there shall be an index to such book as well in the name of 
 the grantee as of the grantor. After being so recorded, such 
 writing may be delivered to the party entitled to claim under the 
 same. If there appear upon such writing, or any paper or cer- 
 tificate annexed thereto, any interlineation, erasure or alteration, 
 of which no memorandum is contained in the writing, paper or 
 certificate, the clerk shall append to the record thereof a memo- 
 randum, describing as accurately as may be such interlineation, 
 erasure or alteration, and such memorandum shall be copied into 
 every certified copy of such Avriting, paper or certificate. Every 
 such memorandum, or a duly certified copy thereof, shall be 
 prima facie evidence of what is therein stated." ' 
 
 Our law further provides that the recorder of each county in 
 this state shall, at the expense of the county, provide a general 
 index for the deed books in his county, in which shall be indexed 
 in the name of the grantor and grantee all the deeds and other 
 writings, except wills, which have heretofore been admitted to 
 record, except in counties where such general index has already 
 been provided and completed.* And hereafter all deeds and 
 other writings, except wills, admitted to record in the recorder's 
 office of any county in this state, shall be indexed in said general 
 index in the name of the grantor and grantee.' 
 
 ' 39 W. Va. 394, 19 S. E. Rep. 510. 
 
 » Examine in this connection Craig v. Williams, 90 Va. 500; s. c. 18 S. E. 
 Rep. 899 and 901; also Rorer on Inter-state Law (2(1 ed.), pp. 94-97. 
 3 Code, 1891, chap. 73, sec. 7. * Idem, sec. 7a. . ildem, \ ja, 11. 
 
488 EQUITY PRINCIPLES. 
 
 "If it be proper for such: writing to be admitted to record in 
 another county, and the same before being admitted to record in 
 such other county be lost or mislaid, on afi&davit of this fact, the 
 clerk of the county court of such other county may admit to 
 record a cop/ of such writings from the records of another county, 
 certified by the clerk of the county court thereof, and the copy 
 so admitted shall have the same effect as if the original had been 
 admitted to record at the time of the copy being admitted.^ 
 
 The statute from which we have just quoted providing for the 
 admission to record of copies when the originals have been lost or 
 mislaid, does not apply to writings which have never been re- 
 corded at all, and a writing lost or the record of which has been 
 prevented by unavoidable accident is void as to creditors and 
 subsequent purchasers for value without notice.^ 
 
 Our statute does not provide any particular time within which 
 deeds or other writings shall be admitted to record, so that they 
 avail against innocent third parties only from the time of their 
 recordation. 
 
 § 363. Notice by subsequent purchasers before the re- 
 cordation of the instrument of conveyance — 
 
 As we have already seen,' the purpose of our recording acts is 
 to protect subsequent innocent purchasers, so if they purchase 
 with actual or constructive notice of the deed or other instru- 
 ment they will not be protected, and he who first acquired the 
 legal title or the right thereto will have the aid of the court to 
 enforce his rights.* But in order to charge a subsequent pur- 
 chaser with notice, either express or implied, the notice must be 
 something more than a vague statement that the vendor's title 
 is subject to an equity. It must be such information as to bind 
 the conscience of the purchaser.^ 
 
 ■ Code 1891, chap 73, sec. 8. " 2 Bart., Ch. Pr. 997. 3 Ante, § 356. 
 
 ■• Newman v. Chapman, 2 Rand. 93; Cosgray v. Core, 2 W. Va. 353; 
 Bugger's Children v. Dugger, 84 Va. 130; s. c. 4 S. E. Rep. 171; Whittock 
 V. Johnson, 87 Va. 323; s. c. 12 S. E. Rep. 614; Chapman v. Chapman, 91 
 Va. 397; s. c. 21 S. E. Rep. 813; Thorn v. Phares, 35 W. Va. 771; s. c. 14 
 S. E. Rep. 399; Burwell's Adm'r v. Fowler, 21 Gratt. 347; i Pom., Eq. Jur., 
 ? 595-597; Boush V. Ware, 15 Pet. 114; Long v. Weller, 29 Gratt. 347. 
 
 5 Connell v. Connell, 32 W. Va. 319; s. c. 9 S. E. Rep. 252. Actual notice 
 may be express or implied. Express notice may be proved by direct evi- 
 dence, and includes actual knowledge; while implied notice is established 
 by proof of circumstances from which knowledge is inferable as a fact. 
 
NOTICB AND RSCORDATION. 489 
 
 § 364. What constitutes actual notice — 
 
 Vague reports from persons not interested in the property do 
 not amount to actual notice ; nor do mere general assertions that 
 some other person claims a title. It has even been stated that 
 the notice must be given by some person interested in the prop- 
 erty, or his agent, to the party charged, or his agent, and com- 
 municated in the same transaction, or in the negotiation leading 
 up to it. But it is believed that the true rule is that knowl- 
 edge of facts, from whatever source obtained, which are sufficient 
 to put an ordinarily prudent man on inquiry will charge a pur- 
 chaser with actual notice of all the facts which such an in- 
 quiry would have developed.^ 
 
 And where the deed is void as to the grantor, though recorded, 
 a subsequent purchaser will not be affected by such conveyance 
 and recordation.^ So, too, where a beneficiary in a deed of trust 
 not on record remembers that there was such deed, but cannot 
 find it, it is insufficient as constructive notice to one to put him 
 on inquiry as to such deed." 
 
 If one buys lands, however, of which another is in visible and 
 notorious possession, the fact of possession is sufficient to have 
 put him on inquiry as to the character and extent of such 
 possession, and he will not be treated as a purchaser without 
 notice.* 
 
 Implied notice, which is equally actual notice, arises where a party is con- 
 scious of having the means of knowing a fact, though he may not employ 
 these means for the purpose of gaining further information. The distinction 
 between implied notice and constructive notice is extremely important in 
 states whose statutes declare that a purchaser who has "actual notice" of a 
 prior unrecorded deed takes subject to such deed. Some of the courts have 
 limited the term "actual notice" to "actual knowledge;" while others have 
 widened it so as to embrace matters falling within the term "constructive 
 notice." The true distinction between implied notice, which is actual, and 
 constructive notice seems to be that implied notice is an inference of fact as 
 to the existence of information drawn by the jury from circumstances 
 proved without the aid of a legal presumption, while constructive notice is 
 a presumption of law, which is for the court where the facts have been 
 ascertained. 
 
 ' Central Land Co. v. Laidley, 32 W. Va. 134; s. c. 9 S. E. Rep. 61. 
 
 " Idem. 
 
 3 Roanoke Brick & Lime Co. v. Simmons (Va.), 20 S. E. Rep. 955. 
 
 « Smith v. Profitt, 82 Va. 832; s. c. i S. E. Rep. 67. 
 
49° EQUITY PRINCIPI,BS. 
 
 Notice to an agent, as to matters within the scope of his agency, 
 is constructive notice to the principal.* 
 
 § 365. What matters contained in record sufficient to put 
 party on inquiry so as to constitute notice to 
 him — 
 The record is notice not only of every fact there disclosed, but 
 of every fact of which it gives sufficient notice to put the person 
 examining it on inquiry, and which, if diligently pursued, will 
 give the notice required.' Thus, a grantee assumed payment of 
 a certain number of notes for a specific sum each, to a designated 
 party, and in the deed the grantor covenanted "that he had done 
 no act to incumber said land, except the deed of trust above men- 
 tioned." No deed of trust was mentioned above, nor was 
 there any on record. Held, that said recital put all claiming 
 through the grantee upon inquiry to said company concerning 
 said deed.' 
 
 It is the duty of a purchaser to look to the title papers under 
 which he buys. If he close his eyes to the sources of informa- 
 tion, he does so at his peril.* "Means of knowledge, with the 
 duty of using them, are in equity equivalent to ^ nowledge 
 itself. '"^ 
 
 § 366. As to lis pendens notice — 
 
 It is with us provided by statute that "the pendency of an ac- 
 tion, suit, attachment or proceedings to subject real estate to the 
 payment of any debt or liability, upon which a previous lien 
 
 ' Fetter on Equity, p. 88. 
 
 ° Opinion of Snyder, J., in Peterson v. Ankrum, 25 W. Va. 60. 
 
 3 Roanoke Brick & Lime Co. v. Simmons (Va.), 20 S. B. Rep. 955. 
 
 Cetain deeds referred to the land conveyed as in a plat filed in the 
 clerk's oflBce in H. county. The deed of the last grantee to defendant did 
 not mention the plat, but referred to the foregoing deeds. Defendant's at- 
 torney, when examining the title of land for defendant, saw the record of 
 the cause in which the plat referred to was filed. Held, that defendant was 
 chargeable with notice of the proceedings in such cause. Whitlock v. John- 
 son, 87 Va. 323; s. c. 12 S. E. Rep. 614. 
 
 ■• Jameson v. Rixey, 94 Va. 342, 26 S. E. Rep. 861. 
 
 5 Jameso:i v. Rixey, supra, in the opinion of the court, citing Wood v. 
 Kiebbo, 30 Gratt. 708; I^ong v. Weller's Ex'r, 29 Gratt. 347; Burwell v. 
 Fauber, 21 Gratt. 446; Carneal v. Lynch, 91 Va. 114, 20 S. E. Rep. 959; 
 I/amar's Ex'r v. Hale, 79 Va. 147. 
 
NOTICE AND RECORDATION. 49 1 
 
 shall not have been acquired ia some one or more of the methods 
 prescribed by law, shall not bind or affect a purchaser of such real 
 estate, for a valuable consideration without notice, unless and un- 
 til a memorandum, setting forth the title of the cause, the court 
 in which it is pending, the general object of the suit, attach- 
 ment or other proceeding, the location and quantity of the land 
 as near as may be, and the name of the person whose estate 
 therein is intended to be affected by the action, suit, attachment 
 or proceeding, shall be filed with the clerk of the county court of 
 the county in which the land is situated. The clerk of every 
 such county court shall without delay record the said memo- 
 randum in the deed book, and index the same in the name of 
 both the parties. ' ' ' 
 
 This provision of our law does not affect the common-law doc- 
 trine of pendente lite purchasers where a lien already exists upon 
 the subject-matter of the suit, acquired in some method or other 
 prescribed by law, and which the suit has been brought to en- 
 force, for, as a rule, every person purchasing pendente lite is 
 treated as a purchaser with notice, and is subject to all the 
 equities of the person under whom he claims in privity.' 
 
 The dcctrine of lis pendens is only applied to proceedings di- 
 rectly relating to the thing or property in question,' and, there- 
 fore, the recording of a lis pendens ■a.o'a.'af^)xtJX a common-law 
 suit is brought to obtain a personal judgment for a debt, will not 
 bind the lands of a defendant, which are bona fide purchased 
 pending such action.* 
 
 Our statute was construed in the case of DeCamp v. Carna- 
 han,' and it was there laid down that the lien excepted from the 
 operation of this statute must be a previous lien acquired in some 
 one or more of the methods prescribed by law ; that it must have 
 been a lien acquired upon the real estate sought to be affected in 
 that suit prior to the commencement of the suit. 
 
 The act providing for the lis pendens notice has no application 
 to personal property when made the subject of a suit.' Nor does 
 
 ' Code, 1891, chap. 139, sec.13. 
 
 ' Harman's v. Bryan's Adm'r, 11 W. Va. 511, 521; Newman v. Chapman, 
 2 Rand. 93; Zane v. Fink, 18 W. Va. 693; DeCamp v. Camahan, 26 W. Va. 
 839, 843, 844; Stout V. Phillippi M. & M. Co., 41 W. Va. 339; s. c. 23 S. E. 
 Rep. 571- 
 
 3 White V. Perry, 14 W. Va. 66, 76. ■< Idem. 
 
 s 26 W. Va. 839, 843. 
 
 ' Osborne v. Glasscock, 39 W. Va. 749; s. c. 20 S. E. Rep. 702. 
 
492 EQUITY PRINCIPLES. 
 
 the law requiring a memorandum of lis pendens to be recorded 
 apply to a suit brought to recover property specifically sued for, as 
 where the object of the suit is to cancel a deed for land obtained 
 by fraud and restore the title thereof to the former owner, so that 
 the purchaser of such land pending such a suit takes the same 
 subject to the result of the suit.^ 
 
 A suit cannot , be said to be pending so as to affect a purchaser 
 of the subject-matter until the subpena commencing the suit has 
 been served, and this must be followed up by the filing of the 
 bill within the proper time, and the Us pendens is then effected 
 from the date of the service of the subpena.'' 
 
 " Wilfong V. Johnson, 41 W. Va. 283, 23 S. E. Rep. 730, in the opinion of 
 the court, citing several decisions. 
 
 ' Stone V. Tyree, 30 W. Va. 684; s. c. 5 S. E. Rep. 878; Harmon v. Byram's 
 Adm'r, 11 W. Va. 511. 
 
PAKTITION. 493 
 
 CHAPTER XXXIV. 
 PARTITION. 
 
 i 367. Definition and kinds of partition. 
 
 368S. Compulsory partition and those among -whom it may be made. 
 
 369. How and where parties may be compelled to make partition. 
 
 370. The property that may be partitioned. 
 
 371. As to questions of title in partition suits. 
 
 372. When land may be sold in a suit for partition thereof. 
 
 373. Some principles applying to the method of making partition. 
 
 374. What constitutes "ouster" as between tenants in common. 
 
 375. Principles of accounting between co-tenants when one has received 
 
 more than his share of the common property. 
 
 376. The commissioners appointed to make partition and their report. 
 
 377. Who are necessary parties to a suit for partition. 
 
 378. What sufficient avenhents of a bill in a suit for partition. 
 
 § 367. Definition and kinds of partition — 
 
 "Partition is the segregation of property owned in undivided 
 shares, so as to vest in each co-owner exclusive title to a specific 
 portion in lieu of his undivided interest in the whole." ^ 
 
 "Partition is the division of lands, tenements or hereditaments, 
 and goods and chattels, between two or more co-tenants. The 
 term is especially but not exclusively applied to real estate."' 
 And co-tenancy is created by common seizin in fact or in law, 
 without regard to the source of the title.' 
 
 Partition is either voluntary, where it is made between the co- 
 owners by agreement,* or compulsory, where it is effected by a 
 proceeding at law or suit in equity.' 
 
 A voluntary partition may be in writing, or it may be oral, if 
 clearly proven and followed by actual possession in severalty of 
 the several parcels, pursuant to such voluntary partition.' 
 
 » Fetter on Equity, 259. 
 
 ' 2 Beach, on Modern Equity Jurisprudence, ? 981. 
 
 3 Davis V. Settle, 43 W. Va. 17, 26 S. E. Rep. 557. 
 
 * 2 Beach, Mod. Eq. Jur., ? 981. = Idem, ? 982. 
 
 ' Patterson v. Martin, 33 W. Va. 494; s. c. 10 S. E. Rep. 817; Edwards v. 
 Chilton, 4 W. Va. 352; Taylor v. Millard, 118 N. Y. 244; s. c. 6 1,. R. A. 667. 
 
 "It is not open to discussion in this state that a parol partition may be 
 made of lands owned by tenants in common, provided each party takes and 
 
494 EQUITY PRINCIPLES. 
 
 § 368. Compulsory partition and those among \vhom it 
 may be made. 
 Our law provides that "tenants in common, joint tenants and 
 coparceners shall be compellable to make partition."^ But before 
 the court will entertain an application for the partition of prop- 
 erty it must appear that the party applying has an actual sub- 
 sisting interest therein;^ though if he has previously parted with 
 his interest in the property by a voidable conveyance, as by deed 
 during infancy, he may nevertheless institute a suit for partition 
 after obtaining his majority and ask to have the contract of sale 
 set aside;' and it must also appear that the party asking for par- 
 tition has a right to the present possession and enjoyment of the 
 property sought to be partitioned.* 
 
 Thus, a remainderman or reversioner cannot maintain a suit 
 for partition until the expiration of the life or other precedent 
 estate, upon which the estate in remainder or reversion is sup- 
 retains exclusive possession of the portion allotted to him. Wood v. Fleet, 
 36 N. Y. 499; Mount V. Morton, 20 Barb. 123; Ryerss v. Wheeler, 25 Wend. 
 434; Gamsey v. Livingston, 7 Wend. 136; Bowman v. Christman, 4 Wend. 
 277; Jackson, Vanbeuren v. Vosburgh, 9 Johns. 270; Duncan v. Harder, 4 
 Johns. 202; Freem. Co-tenancy, ? 398; Knapp, Part. 465. 
 
 A tenancy in common exists when there is merely unity of possession, 
 either with 6r without a union of other interests. The result of a parol par- 
 tition, when carried into efiect by each tenant taking exclusive possession of 
 his own share and surrendering the possession of all the other shares ac- 
 cording to the allotment, is to destroy the unity of possession; and thus the 
 parties by their acts only, without a deed, cease to be tenants in common of 
 the whole, and each becomes the tenant in severalty of a part. The unity 
 of possession is severed and the partition is effected by the acts of the par- 
 ties in taking exclusive possession of their respective shares by common 
 consent. While the form of the transaction is a parol agreement followed 
 by the act of taking exclusive possession, each of his part, the substance 
 is the act itself. A parol agreement simply cannot terminate the unity of 
 possession. Standing alone, it would be ineffectual for any purpose. The 
 partition springs from the act of each tenant, vrith the consent of the 
 others. Although practically a substitute for, it is not equivalent to mu- 
 tual conveyances, which would sever the unity of possession, even if not 
 followed by actual possession." Taylor v. Millard, 118 N. Y. 244, 6 L. 
 R. A. 668. See also Frederick v. Frederick, 31 W. Va. 566; s. c. 8 S. E. 
 Rep. 295. 
 
 ' Code, 1891, ch. 79, sec. i. 'John v. Barnes, 21 W. Va. 498. 
 
 3 Gillespie v. Bailey, 12 W. Va. 70. 
 
 * Merritt v. Hughes, 36 W. Va. 356; Seibel v. Rapp. 85 Va. 28; s. c. 6 S. 
 E. Rep. 488. 
 
PARTITION-. 495 
 
 ported,^ unless the life tenant or other exclusive occupying tenant 
 appear and consent to the partition." 
 
 Under the principles thus laid down, a tenant for life of an undi- 
 vided share of an estate, with remainders to his unborn sons, may- 
 file a bill for partition, and the decree will be binding on the sons, 
 when in esse,-" and a life tenant of one moiety of land can maintain 
 a suit for partition against the remainderman in esse and the fee 
 simple o-wners of the other moiety;* and so may the purchaser of 
 the rights of certain legatees to their undivided portions of their 
 father's estate,^ or the purchaser of the undi-vided interest of one 
 of the co-tenants," and the retention of a lien for the purchase- 
 money by the vendor does not affect the right of the purchaser 
 to have partition.' 
 
 But a widow entitled to dower in the real estate of her deceased 
 husband is neither a joint tenant, tenant in common, nor co- 
 parcener -with the heirs at law within the meaning of the statute 
 relating to partition, so as to maintain a partition suit or to au- 
 thorize a sale of the property and distribute the proceeds accord- 
 ing to the respective rights of the parties, if there is objection 
 made thereto;* nor can a trust, mortgage or other lienor, holding 
 a lien upon the undivided interest of a co-tenant, maintain a suit 
 for partition;' nor a purchaser under a mere oral contract for the 
 purchase of an undivided interest of a co-tenant." 
 
 " In general any person having a legal or equitable title and 
 actual or constructive possession is entitled to have partition.'"^ 
 Thus the owners of an equity of redemption in lands may have 
 partition thereof,^' but they cannot compel mortgagees and judg- 
 ment creditors to join with them in the suit for partition." 
 
 ' Merritt v. Hughes, supra/ Seibel v. Rapp, supra. 
 
 ' Brice v. Nixon, 34 W. ^Va. 107; s. c. 11 S. E. Rep. 1004. 
 
 3 Cameal v. I,yncli, 91 Va. 114, 20 S. E. Rep. 959. 
 
 * Cameal v. Lynch, supra; Otley v. McAlpin, 2 Gratt. 340. See also Shaw 
 -v. Beers, 84 Ind. 528; Arnold v. Bunnell, 42 W. ^Va. 473, 26 S. E. Rep. 359. 
 
 5 Niseley v. Findlay, 3 Rand, 361. 
 
 " -Worthing^on v. Staunton, 16 W. Va. 208. 
 
 7 Wright V. Strother, 76 Va. 857. ' Hull v. Hull, 26 W. Va. i. 
 
 9 Mitchell V. Faush, 69 Md. 235; 14 All. Rep. 712; Sis v. Boarman, 11 App. 
 D. C. 116, 25 -Wash. Rep. 431, citing Norcross v. Norcross, 105 Mass. 265; 
 Bro-wnell v. Brownell, 19 Wend. 367. But see 2 Va. I/aw Reg. 423. 
 
 •» EUis V. Hill, 162 111. 557, 44 N. E. Rep. 858. 
 
 " 2 Beach, Mod. Eq. Jur., ? 988. 
 
 " Martin v. Martin, 95 Va. 26, 27 S. E. Rep. 810. '^Idetn. 
 
496 EQUITY PRINCIPLES. 
 
 § 369. How and where parties may be compelled to make 
 partition — 
 
 The common law provides a crude remedy for partition by 
 "writ of partition" as matter of right, to coparceners, and this 
 was extended by statute so as to include joint tenants and tenants 
 in common.^ But the common-law proceedings have now become 
 practically obsolete in nearly all the states, superseded by equita- 
 ble and statutory relief.' 
 
 The jurisdiction of the court of chancery to award partition 
 of lands, is well established, and application thereto for relief 
 may be made as matter of right.' 
 
 The statute provides that the circuit court of the county 
 wherein the estate to be partitioned is, or any part thereof may 
 be, shall have jurisdiction in cases of partition.* But the court 
 would have no jurisdiction to make partition of lands, the major 
 portion of which is situated in another state, although all the 
 parties in interest may be before it.* 
 
 § 370. The property that may be partitioned — 
 
 "In general any property capable of division is subject to par- 
 tition in equity. And any lands held in common, whether by 
 legal or equitable title, wherever there is right of possession, or 
 at least of rents and profits in the person applying therefor, 
 will be partitioned. Incorporeal hereditaments are subject ta 
 partition in equity only, and the same is true of franchises. 
 Thus the rights and privileges of a mineral spring are subject 
 to partition. And the right to carry away seaweed; and the in- 
 terest in a ferry franchise. Personal property is subject to par- 
 tition only in equity, unless by legislative enactment; and such 
 relief is given even where plaintiff's title is denied; nor is pos- 
 
 » 2 Beach, Mod. Eq. Jur., i 982. 
 
 ' Idem; 1 Bart., Ch. Pr. 202. As early as the reign of Elizabeth, partition 
 became a matter of equitable cognizance, and now the jurisdiction is estab- 
 lished, as of right, in England and the United States. Killmer v. Mechner, 
 8 L. R. A. 289, note citing numerous authorities. 
 
 3 Wilkin V. Wilkin, i Johns. Ch. 117; Stuart v. Coulter, 4 Rand. 74; Strang- 
 ham V. Wright, Idem, 493; Wiseley v. Findlay, 3 Rand. 361; Ranson v. High, 
 37 W. Va. 838; s. c. 17 S. E. Rep. 413. See this last case for an interesting 
 resume of the history of partition procedure. 
 
 « Code, 1891, chap. 79, sec. i. 
 
 s Winer v. Winer, 82 Va. 890; s. c. 5 S. E. Rep. 536. 
 
PARTITION. 497 
 
 session of the plain tifE necessary; for otherwise the co-owner 
 without possession would have no remedy, as there is no method 
 of his getting possession at law unless by statutory provision. 
 In the absence of statutory provision, a reversion or remainder^ 
 is not subject to partition. The question of partition of an es- 
 tate held in active trust is subject to conflicting decisions, the 
 majority of cases deciding that such trust estate cannot be divided 
 so as to defeat the testator's intention and against the consent of 
 a cestui que trust. But where an executor failed to comply with 
 a voluntary partition such partition was sustained, and it is held 
 that there may be partition between several devisees where one 
 share devised is held in trust."" 
 
 It is settled law that the courts of one state have no jurisdic- 
 tion to make partition of lands situated in another and different 
 state, because such right can only be exercised under the lex loot 
 rei sitae? Nor can there be any partition among tenants simply 
 of the timber growing on the land held by them in common.* 
 Neither can partition of oil and gas belonging to co-owners sepa- 
 rate from the surface of the land be made, except by sale and a 
 division of the proceeds among such owners.^ 
 
 Our statute provides that "when an equal division of goods 
 and chattels cannot be made in kind among those entitled, a 
 court of equity may direct the sale of the same and the distribu- 
 tion of the proceeds according to the rights of the parties. ' " 
 
 § 371. As to questions of title in partition suits — 
 
 Our law relating to partition,' is taken from the Code of Vir- 
 ginia and in the latter state prior to 1850, a court of equity in a 
 suit for partition could not take cognizance of questions of title 
 touching the subject of partition, and if the plaintiff's title to the 
 land was denied, and it depended on doubtful facts, or questions 
 of law, the court either dismissed the bill, or retained the cause 
 till the plaintiff's rights as to his title were determined at law.* 
 But under the law as passed by the legislature of Virginia and 
 
 ^Ante, ^368. 
 
 " 2 Beach, Mod. Eq. Jnr., § 989. ' Wimer v. Wimer, 82 Va. 890. 
 
 < Benedict v. Torrent, 83 Mich. 181, 11 L. R. A. 278; Mee v. , 98 
 
 Mich. 260; 22 I,. R. A. 641. 
 5 Hall V. Vernon, 00 W. Va. 000, 34 S. E. Rep. 764. 
 ' Code, 1891, chap. 79, sec. 6. ' Idem, sec. i. 
 
 « Hudson V. Putney, 14 W. Va. 561. 
 
498 EQUITY PRINCIPIvES. 
 
 carried into our Code conferring on the court jurisdiction to take 
 cognizance of all questions of law affecting the legal title that 
 may arise in any proceeding for partition,* when the title 
 of the plaintiff is doubtful, the court of equity should decide 
 the question observing the general rules of practice in courts of 
 equity for the purpose of ascertaining facts either by a jury or 
 otherwise as may be proper.^ 
 
 And in the exercise of this power the court may remove a 
 cloud from the plaintiff's title or pass upon an adverse claim to 
 the land.' 
 
 But this statute does not authorize the court to pass on the 
 title of a stranger claiming under a different title, adverse to the 
 title under which the partition is to be made; nor can such 
 stranger and his hostile title be brought into a partition suit, and 
 the conflict between the two hostile rights settled as incident to 
 such suit/ 
 
 § 372, When land may be sold in a suit for partition 
 thereof — 
 
 Our statute provides that "when partition cannot be con- 
 veniently made, the entire subject may be allotted to any party 
 who will accept it, and pay therefor to the other parties such 
 sums of money as their interest therein may entitle them to; or 
 in any case now pending or hereafter brought, in which partition 
 cannot be conveniently made, if the interests of those who are 
 entitled to the subject, or its proceeds, will be promoted by a sale 
 of the entire subject, or allottment of part and sale of the residue, 
 the court, notwithstanding any of those entitled may be an in- 
 fant, insane person, or married woman, may order such sale, or 
 such sale and allotment, and make distribution of the proceeds of 
 sale, according to the respective rights of those entitled, taking 
 care, when there are creditors of any deceased person, who was 
 a tenant in common, joint tenant or coparcener, to have the pro- 
 ceeds of such deceased person's part, applied according to the 
 rights of such creditors. The court making an order for sale 
 
 ' Code, 1891, chap. 79, sec. i. = Henderson v. Putney, supra. 
 
 ' Moore v. Harper, 27 W. Va., 362; Fry v. Payne, 82 Va. 759; s. c. i S. E. 
 Rep. 197; Arnold v. Arnold, 11 W. Va. 449; Dings v. Brannon, 14 W. Va. 
 100; Bradley v. Zehmer, 82 Va. 685. 
 
 « Davis V. Settle, 43 W. Va. 17, 26 S. E. Rep. 557; Carberry v. W. Va. & 
 P. R. Co., 44 W. Va. 260, 28 S. B. Rep. 694. 
 
PARTITION. 499 
 
 shall, when the dividend of a party exceeds the value of three 
 hundred dollars, if such party be an infant or insane person, re- 
 quire security for the faithful application of the proceeds of his 
 interest, in like manner as if the sale were made under chapter 
 eighty-three."^ 
 
 Notwithstanding the provision of this enactment, that where 
 partition cannot be conveniently made, a sale may be decreed of 
 the land if, the interests of those entitled to its proceeds will be 
 promoted thereby, yet as the heir, upon general principles is en- 
 titled to have his share of the land in kind allotted to him in sev- 
 eralty, it is only when circumstances exist, which render a fair 
 partition impracticable, that the court is justified in exercising its 
 extraordinary power of directing the lands to be sold in lieu of 
 making partition thereof in kind.* 
 
 When the court determines upon a sale it may allot the entire 
 subject to a party who will accept it, paying therefor to the other 
 parties such sums of money as their interests may entitle them 
 to; or, it may order the whole subject to be sold; but whether 
 the court should in any particular case adopt one or the other of 
 these modes of proceeding must depend upon the circumstances 
 of the case.' 
 
 It is scarcely necessary to state that after suit for partition has 
 been brought, the parties in interest may consent to a sale of the 
 land, and this too, after the commissioners for its partition have 
 been appointed and reported the practicability of partitioning the 
 same.* 
 
 But, though all the heirs at law, entitled to have partition, file 
 their bill for a sale of the lands in which they allege that parti- 
 tion cannot be made among the parties without great injury to 
 them, and that their interest will be promoted by a sale of the 
 entire subject, and that from the peculiar condition of the prop- 
 erty dower can not be assigned to the widow, and asking for a 
 sale of the dower right of the widow, still there cannot be a sale 
 of the entire subject, including such dower, if the widow insists 
 upon an assignment of her dower in lands by metes and bounds, 
 unless it be made to appear to the court that it is impossible to 
 
 ' Code, 1891, chap. 79, sec. 3. 
 
 ' Casto V. Kintzel, 27 W. Va. 750; Roberts v. Coleman, 37 W. Va. 143; s. 
 c. 16 S. E. Rep. 482. 
 3 Carothers v. Joliffe, 32 W. Va. 562; s. c. 9 S. E. Rep. 889. 
 * Connell v. WUhelm, 36 W. Va. 598; s. c. 15 S. E. Rep. 245. 
 
5O0 EQUITY PRINCIPLES. 
 
 assign the widow her dower of and in the real estate of her hus- 
 band.^ And, where the court does determine upon a sale of the 
 land, it should be sold as a whole (in the absence of the consent 
 of the parties in interest to the contrary), as it would not be just 
 to sell as to some and decree a partition as to others. ' Nor can 
 the court direct a sale of the lands unless the propriety of such 
 sale is made to appear from the commissioner's report, or other- 
 wise by the record in the cause, and also that the interests of 
 those concerned in the land or its proceeds will be promoted by a 
 sale;' and where commissioners of sale report to the court that 
 it is impracticable to partition a farm so as to subject the in- 
 terest of one of the heirs to the hens upon it, and there is no 
 evidence to the contrary, this is sufficient to confirm the report 
 and direct a sale of the land.* But it is not necessary to appoint 
 commissioners to view the land and report to the court as to a 
 partition, the matter of procedure as to the determination of this 
 point being left to the discretion of the court, as it is sufficient if 
 it appear from the record that the facts reasonably warrant a sale.* 
 And, before ordering a sale in partition, the court should ascer- 
 tain the interests of the respective parties in the property to be 
 sold." 
 
 § 373- Some principles applying to the method of making 
 partition — 
 
 Our statute provides that "any two or more of the parties, if 
 they so elect, may have their shares laid off together, when par- 
 tition can be made in that way. ' ' ' 
 
 When the common property consists of mills and houses, one 
 joint tenant, tenant in common, or coparcener, can compel the 
 others to contribute as to future repairs thereof, but not to 
 those already made; and in partition, where one of the tenants 
 has put repairs on the property, the part improved, if it can be 
 
 ■ White V. White, 16 Gratt. 264; Hull v. Hull, 20 W. Va. 18. 
 
 " Beckham v. Duncan, cx3 Va. 000; s. c. 5 S. E. Rep. 690. This case is not 
 reported in the State Reports. See Dugan v. Baltimore, 70 Md. 000, i6 Atl. 
 Rep. 501. 
 
 3 I Bart., Ch. Pr. 293; Roberts v. Coleman, 37 W. Va. 143; s. c. 16 S. B. 
 Rep. 482; Zirkle v. McCue, 16 Gratt. 517; .Custis v. Snead, 12 Gratt. 260. 
 
 * Beckman v. Duncan, supra. 
 
 5 Stevens v. McCormick, 90 Va. 735; s. c. 19 S. E. Rep. 742. 
 
 ' Stevens v. McCormick, supra. 
 
 ' Code, 1891, chap. 79, sec. 2; Casto v. Kintzel, 27 W. Va. 750. 
 
PARTITION. 501 
 
 done, should be assigned to the improver. But, when this can- 
 not be done, the cost of improvement cannot be charged to him 
 to whom it goes.' But, if the property is not susceptible of par- 
 tition, and must be sold, the one who made the repairs and per- 
 manent improvement shall receive out of the proceeds that amount 
 by which the property, at the date of sale, remains enhanced in 
 value from the improvements, not their original costs.' And, 
 where it is proper to allow a coparcener for improvements, a 
 charge for use and occupation may be set off against the improve- 
 ments, where he has occupied the premises.' 
 
 While a deed from a co-tenant has been made to another of 
 part of the common property, describing such part by metes and 
 bounds, cannot operate to the prejudice of the other tenants in 
 common, yet a court of equity in a partition suit will allot to the 
 ptrrchaser the portion so conveyed, if it can be done without 
 prejudice to the rights of the other co-tenants.* 
 
 Where it is impracticable to give to each co-owner or tenant an 
 equal share in kind of the common property, in some states an al- 
 lowance may be given called ' 'owlety of partition, ' ' and is awarded 
 by a court of equity wherever partition is made, when it is nec- 
 essary to make a fair and equitable division of the lands; the co- 
 tenant receiving the less valuable portion being awarded a sum of 
 money, or an equivalent, to compensate for the difference.^ 
 
 From an examination of the authorities and our statute bear- 
 ing on this question, we are of opinion that owelty of partition 
 cannot be resorted to for the purpose of equalizing a partition in 
 the absence of a statute authorizing it, or when the consent of 
 the parties is not given thereto. So that ' 'owelty of partition' ' 
 cannot be awarded by our courts, and when an equal and fair 
 partition cannot be made among the parties, the property must 
 be sold.* In fact, our statute authorizing partition of real estate 
 admits of no other construction. This statute authorizes, first, 
 
 ■ Ward V. Ward, 40 W. Va. 611; s. c. 21 S. E. Rep. 746. 
 
 ' Ward V. Ward, supra; s. c. 29 I,. R. A. 44, and elaborate note. 
 
 3 Idem. See Ballon v. Ballon, 94 Va. 350, 27 S. E. Rep. 840. 
 
 < Worthington v. Staunton, 16 W. Va. 208; Boggess v. Meredith, i6 W. 
 Va. 1. 
 
 s 2 Beach, Mod. Eq. Jur., ? 993. 
 
 » See the following authorities: Field v. Leiter, 117 111. 341; s. c. 7 N. E. 
 Rep. 279, 281-286, Gooch v. Green, 102 111. 507; Dismukes v. Halpern, 47 
 Ark. 317. 
 
502 EQUITY PRINCIPLES. 
 
 partition, when this can conveniently be made; second, the allot- 
 ment of the entire subject-matter to any party in interest who 
 will accept it and pay therefor to the other parties such sums of 
 money as their interests therein may entitle them to; or, third, 
 where partition cannot be conveniently made, a decree of sale 
 may be entered for the entire subject.' The authorities, as a 
 rule, in the absence of a statute authorizing it, as just stated, 
 deny the right to make partition against the consent of the 
 parties, or any of them, by awarding owelty therein.' 
 
 It is not, perhaps, necessary to illustrate the injustice of such 
 a principle, attempting to create equality in the partition, of real 
 estate; but suppose the less valuable portions are allotted to in- 
 fants without any property except their interests in the land di- 
 vided, and their land is thus charged with debt which they are 
 wholly unable to discharge. Being without means of payment, 
 they must inevitably submit to the sale of their shares, probably at 
 a sacrifice of nearly their entire landed interests, as the sale would 
 probably be made at pubUc auction to the highest bidder, and 
 also being much less valuable, because only a portion or fragment 
 of what had once been a desirable farm, and which would have 
 sold as an entirety at a price to have advanced the interests of all 
 parties, including the interests of the infants. This single illus- 
 tration is sufficient to show the injustice and absurdity of such a 
 principle when applied in matters of partition. But in the State 
 of Virginia, under a statute the same as our own, it is held that 
 owelty of partition may be allowed, and in such a case the more 
 valuable share will be charged with the difference between it and 
 the less valuable;' thus creating a lien upon the land of another 
 against his will, it may be, and without his consent. 
 
 The court, in making partition of land having a right of way 
 appurtenant thereto, may allow such right of way to all the co- 
 tenants, or it may confine the right of way to one or more of the 
 allotments to the exclusion of the others, or the court may create 
 
 ' Corrothers v. Joliffe, 32 W. Va. 562, 9 S. E. Rep. 889. An examination 
 of the decision and opinion in this case will show that it negatives the right 
 of conunissioners in partition to award owelty of partition. 
 
 " See Corrothers v. Joliffe, supra; Hopkins on Real Prop. 346, and the au- 
 thorities cited there. In this connection, we refer to the very valuable opin- 
 ion of Scott, C. J., in Field v. I<eiter, supra. 
 
 3 Cox V. McMullen, 14 Gratt. 82; Martin v. Martin, 95 Va. 26, 27 S. E. 
 Rep. 810. 
 
PARTITION. 503 
 
 rights of way for one allotment over another, if that appears nec- 
 essary to the enjoyment of the separate allotment; but no co- 
 tenant is entitled to such right of way over the lot of his co-ten- 
 ant as matter of absolute right. ^ 
 
 § 374. What constitutes "ouster" as between tenants in 
 common — 
 
 Prior to the adoption of our statute' a tenant in common or 
 other person seeking a partition of the common property miist 
 have had actual or constructive possession thereof, and not have 
 been ousted therefrom, in order to maintain a suit for partition.' 
 But now the fact that one tenant in common has been ousted by 
 another in sole possession, claiming the whole under a convey- 
 ance from another co-tenant, will not debar a court of equity from 
 jiuisdiction in partition, so long as the right of entry is not 
 barred by the statute of limitations;* and inasmuch as the posses- 
 sion of one co-tenant is the possession of all, laches, acquiescence, 
 or lapse of time cannot bar the right of entry of a co-tenant, until 
 the actual disseisin of the statutory period of ten years has been 
 effected by some notorious act of ouster, brought home to his 
 knowledge.® If any one of the coparceners or tenants in com- 
 mon is in possession of the property, such possession is ordinarily 
 regarded as the possession of all the coparceners or tenants in 
 common, and such possession being subordinate and not adverse, 
 cannot, however long continued, operate as a bar to his co- 
 parceners or tenants in common.* 
 
 To bar the right of partition the occupancy must amount to 
 title by adverse possession, and it requires much more to consti- 
 tute such title between tenants in common and joint tenants than 
 it does between a tenant and strangers, inasmuch as the relation 
 between the former is fiduciary. But it is well settled that one 
 joint owner may by his act or words show his intention to hold 
 his co-tenants off the property and actually exclude them there- 
 from and thus create an ouster and his possession become 
 adverse.' 
 
 ■ Henrie v. Johnson, 28 W. Va. 190. " Code, chap. 79, sec. i. 
 
 3 Cecil V. Clark, 44 W. Va. 659, 30 S. E. Rep. 216. 
 
 * Cecil V. Clark, supra; Parker v. Brast, 45 W. Va. 399, 32 S. E. Rep. 269. 
 5 Parker v. Brast, 45 W. Va. 399, 32 S. E. Rep. 269. 
 
 * Covey V. Porter, 22 W. Va. 120. ' Idem, 120, 124. 
 
504 EQUITY PRINCIPIvES. 
 
 An actual ouster of one tenant in common cannot be presumed 
 except where the possession has become tortious and wrongful 
 by the disloyal acts of the co-tenant, which must be open, con- 
 tinued and notorious, so as to preclude all doubts of the character 
 of his holding or the want of knowledge thereof by his co- 
 tenant. This conduct must amount to a clear, positive and con- 
 tinued disclaimer and disavowal of his co-tenant's title, and an 
 assertion of his adverse right; and a knowledge of this must be 
 brought home to his co-tenant.^ 
 
 An implied obligation exists between tenants in common, joint 
 tenants and coparceners to sustain the common interest, which 
 is recognized in a court of equity as a trust, and the purchase 
 of an incumbrance or outstanding title upon the joint or common 
 property by one of the common owners in his own name will in- 
 ure to the benefit of all, but they will be compelled to contribute 
 their respective ratios of the consideration paid therefor; * nor 
 can one tenant in common purchase a supericr outstanding title 
 and afterwards use it for the purpose of expelling his co-tenant 
 from the common property.' 
 
 § 375. Principles of accounting between co-tenants when 
 one has received more than his share of the com- 
 mon property— 
 
 At common law joint tenants and tenants in common had no 
 remedy against each other where one alone had received the 
 whole profits of the estate since he could not be charged as 
 bailiff or receiver to his companion, unless he had actually made 
 him such.* But our statute taken from that of Virginia provides 
 a remedy by joint tenants and tenants in common against one an- 
 other when one has received more than his just share or propor- 
 tion of the common property.* And in a suit in equity for the 
 
 » Boggess V. Meredith 16 W. Va. i; Rust v. Rust, 17 W. Va. 901; Hudson 
 V. Putney, 14 W. Va. 561. 
 
 'Tisdale v. Tisdale, 2 Sneed (Tenn.), 596; 64 Am. Dec. 775; Weaver v. 
 Nible, 25 Pa. St. 270; Clark v. Lindsay, 9 U R. A. 740, and note; Barnes v. 
 Boardman, 9 I,. R. A. 571 and note. 
 
 3 Venable v. Beauchamp, 3 Dana (Ky.), 321; Pillow v. Southwest Imp. Co. 
 23 S. E.Rep. 32. 
 
 * Opinion of Haymond, J., in Rust v. Rust, 17 W. Va. 909, citing i Tho. C. 
 788, note, (R), Early et ux. v. Friend et al., 16 Gratt. 43. 
 
 5 Code, 1891, chap. 100, sec. 14. 
 
PARTITION. 505 
 
 partition of the property, a decree may be entered for an account 
 of rents and profits to be rendered by bim who has received 
 more than his just share and proportion of the property within 
 the meaning of the statute.' 
 
 The rule for determining what is more than the just share or 
 proportion of a tenant in common or joint tenant is defined by 
 our supreme court of appeals in Rust v. Rust," as follows: 
 "Whenever the nature of the property is such as not to admit of 
 its use and occupation by several, and it is used and occupied by 
 one only of the tenants in common, or whenever the property, 
 though capable of use and occupation by several, is yet so used 
 and occupied by one as in effect to exclude the others, he re- 
 ceives more than his just share and proportion within the meaning 
 of the statute. ' ' And the court in this case, in further defining 
 this rule, says: "When the common property is rented out by 
 one tenant in common, he is accountable to his co-tenants for 
 their share of the rents he has received; and when he occupies 
 and uses the whole property himself, he is liable to his co-tenants 
 for a reasonable rent for it in the condition it was when he took 
 possession." But the supreme court, in further deciding upon 
 the meaning of this statute in Dodson v. Hays,' says: "Where 
 the nature of the property is such as to admit of its use and oc- 
 cupation by several, and less than his just share and proportion 
 of the common property is used and occupied by one tenant in 
 common in a manner which tends in no way to hinder or exclude 
 the other tenants in common from in like manner using and oc- 
 cupying their just share and proportion, such tenant does not re- 
 ceive more than comes to his just share and proportion within 
 the meaning of chapter 100, section 14, of the Code, and is not 
 accountable to his co-tenants for the profits of that portion of the 
 property used by him." ' 
 
 ' Rust V. Rust, supra; Dodson v. Hays, 29 W. Va. 577; s. c. 2 S. E. Rep. 
 415; Ogle V. Adams, 12 W. Va. 213; Brice v. Nixon, 34 W. Va. 107; s. c. 11 
 S. E. Rep. 1004; Ruffners v. Lewis, 7 Leigh, 720; Early v. Friend, i5 Gratt. 
 21, 52; Newman v. Newman, 27 Gratt. 14. 
 
 M7 W. Va. 901. 3 29 W. Va. 577, 2 S. E. Rep. 415. 
 
 < But, after a very careful review of tlie whole subject, the court of appeals 
 of Virginia, in the case of Early v. Friend, 16 Gratt. 21 (decided in i860), 
 overruled the decision in Henderson v. Eason, 17 Adol. & E. (N. S.) 79 E. 
 C. L. 701, and decided that this English construction of this statute was er- 
 roneous, and held: (i) One tenant in common may maintain a suit in 
 equity against his co-tenant who has occupied the whole of the common prop- 
 
5o6 EQUITY PRINCIPLES. 
 
 An examination of the adjudications discloses that the general 
 rule which shall determine the question as to what is "more than 
 the just share of a co-tenant" is founded upon the fair rental 
 value of the property used without reference to expenditures and 
 profits made by the occupying tenant; but they also show that 
 there are exceptional cases to this rule. To illustrate: In the 
 cases of Ruffner v. Lewis and Early and Wife v. Friend, cited 
 in the foot-notes, the court determined what was the just 
 share of the tenant in common that had been excluded from 
 the use of the property by the principles underlying the general 
 rule. That is, by the rental value. But in the cases of Graham 
 V. Pierce,* and Newman v. Newman,* the court did not follow the 
 general rule, but directed an accounting upon the principle of 
 expenditures and profits arising from the operation of the 
 property. 
 
 The property in the case of Graham v. Pierce consisted of a 
 lead mine, and in Newman v. Newman, of an iron furnace 
 and forge and a large quantity of land. 
 
 erty for an account of rents and profits. (2) Whenever the nature of the 
 property is such as not to admit of its use and occupation by several, and it 
 is used and occupied by one only of the tenants in common, or wherever the 
 property, though' capable of use and occupation by several, is yet used and 
 occupied by one as in effect to exclude the others, he receives more than 
 comes to his just share and proportion within the meaning of this statute. 
 (3) Where the common property is rented out by one tenant in common, he 
 is accountable to his co-tenants for his share of the rents he has received, 
 and, where he occupies and uses the whole property himself, he is liable to 
 his co-tenants for a reasonable rent for it in the condition it was when he 
 took possession. (4) Interest is to be paid upon the rents found to be due 
 from the tenant in common in possession to his co-tenants. 
 
 Prior to that, this construction of the statute had been acted upon as 
 though it were the law, without question, in Ruffners v. I^ewis' Bx'rs, 7 
 l^eigh, 720. See also Thompson v. Bostic, i McMul. Eq. 75, decided in South 
 Carolina in 1830, and Holt v. Robertson, Id. 475; Hancock v. Day, Id. 69; 
 Sargent v. Parsons, 12 Mass. 149; Wheeler v. Horn, Willes, 208; Sturton v. 
 Richardson, 3 Mees & W. 17; Henderson v. Eason, 79 E. C. I,. 718. The 
 principles laid down in Early v. Friend, 16 Gratt. 21, were again followed in 
 Graham v. Pierce, 19 Gratt. 28 (decided in 1869). The first of the cases de- 
 cided in i860 is a binding authority upon us, and I am satisfied that it is a just 
 and true exposition of our statute. 
 
 ' 19 Gratt. 28. ' 28 Gratt ooo- 
 
PARTITION. 507 
 
 § 376. The commissioners appointed to make partition 
 and their report — 
 
 Partition is made by any three of five commissioners (with us 
 three, any two of whom may act) appointed for that purpose by 
 the court. Upon the return of the report of partition, if an un- 
 successful objection is made thereto, the final decree confirms the 
 report; or, if a sale be found necessary, it is ordered to be made, 
 in which latter case the decree is not entirely final, the cause be- 
 ing reserved in order that the court may superintend the sale.^ 
 
 It is so important that the commissioners be sworn, before pro- 
 ceeding to Anew the premises and make partition, that their re- 
 port ought to show such fact, and the interlocutory decree for 
 partition reciting their appointment ought to direct that they be 
 sworn before acting.^ And it is usual to return with the report 
 of the commissioners a certificate of the oath taken by them.' 
 
 All the commissioners are to do is to execute the interlocutory 
 order authorizing the partition, make the partition and allotments 
 in accordance therewith, and return a report of what they have 
 done, showing that the property has been divided, and to whom 
 the several parts have been allotted or assigned (designating the 
 parts assigned by proper metes and bounds), returning with their 
 report all the evidence taken or maps or deeds used and read and 
 made.* They need not give notice of the time when they will 
 make partition,' as the parties interested have their day in court 
 when the report comes before the court for its approval or rejec- 
 tion.^ 
 
 Commissioners, when once appointed, no matter by whom 
 nominated, are commissioners for all the parties, and owe to 
 them and the court the duty of fairness and impartiality, and 
 after their appointment they are not to be removed except for 
 good and sufficient reasons, unless by consent of the parties.' 
 In making the partition, the commissioners shall take into con- 
 sideration the quantity and value of the several parts so to be set 
 apart and assigned, so that each party shall receive an equitable 
 
 ' I Bart., Ch. Prac. 291. 
 
 = Ransom v. High, 37 W. Va. 838; s. c. 17 S. E. Rep., in opinion of Holt, 
 J., at p. 415- 
 
 3 Idem. * Idem, 416. 
 
 s McClanahan v. Hockman, 96 Va. 392, 31 S. E. Rep. 516. « Idem. 
 
 I Ransom v. High, 37 W. Va. 838; s. c. 17 S. E. Rep., in opinion of Holt, 
 J., at pp. 415.416- 
 
5o8 BQTJITY PRINCIPI.BS. 
 
 proportion in value of the land in accordance with their respective 
 interests.' But it is not necessary that the report should place a 
 money valuation on all or any portion of the land apportioned.' 
 
 If the commissioners determine that the property is not sus- 
 ceptible of partition, they should so report, setting forth the facts 
 upon which they base their conclusions.' 
 
 After the commissioners have acted and made their return to 
 court, and their action and report is excepted to on the ground that 
 they have not set apart and assigned to any one his just and full 
 share, unless it appear that the commissioners misunderstood or 
 failed to perform some duty, or acted on a wrong principle, the 
 court will not sustain such exception, unless it be shown by a 
 clear and decided preponderance of evidence that the commis- 
 sioners have made an unequal and unfair partition.^ In the ab- 
 sence of evidence to the contrary, the court will presume that 
 the conclusions reached by the commissioners, and by them re- 
 ported to the court, are true, and sufiBcient to authorize a decree 
 in accordance with them." 
 
 When exceptions are indorsed to the commissioners' report in 
 partition because of inequality as to quantity and quality, the in- 
 equality must be specifically pointed out." 
 
 We must not omit to state here that it is the duty of the court, 
 through its commissioners or in any other proper manner, to 
 ascertain what estate exists before proceeding to make a partition 
 of the same or confirming the partition made under its decree.' 
 
 § 377. \Vho are necessary parties to a suit for partition — 
 
 In addition to what has already been said on this subject,* it is 
 a cardinal principle that there can be no decree for partition 
 until all the persons interested in the premises are before the 
 court as parties to the suit.' 
 
 But this rule only includes those actually interested in the 
 
 ' Idem = McClanahan v. Hockman, supra. 
 
 3 McGee v. Russell, 49 Ark. 104; s. c. 4 S. W. Rep. 284. 
 
 * Ransom v. High, supra. = McClanahan v. Hockman, supra. 
 
 ' Martin v. Martin, 95 Va. 26, 27 S. E. Rep. 810. 
 
 1 Dingess v. Marcum, 41 W. Va. 757; s. c. 24 S. E. Rep. 624. 
 
 = Ante, § 368. 
 
 9 Bm^haus v. Burnhaus, 2 Barb. Ch. 398, 5 L. ed. 690; Braker v. Dev- 
 ereaux, 8 Paige, Ch. 513, 4 I,, ed. 524; De La Vega v. Leayne, 64 Tex. 205- 
 Boggess V. Meredith, i6 W. Va. i, 19, 25. 
 
PARTITION. 509 
 
 matter of partition, not creditors and lienors holding liens upon 
 the property;^ and when made parties to the suit in that char- 
 acter only, the suit will be dismissed as to them.'' And where 
 some of the co-tenants have sold their imdivided interest in lands 
 and reserved liens for the unpaid purchase- money, the existence 
 of these liens on the undivided shares does not, per se, prevent 
 the division of the common property among the real owners. In 
 such case the hens will be considered as attaching to the parcels 
 under the partition in severalty.' 
 
 The administrator of the deceased ancestor is not a necessary 
 or proper party;* nor is the wife of a husband, tenant in common, 
 a necessary party to a suit in partition;* nor a mortgagee of an 
 interest in an undivided estate.* 
 
 But the grantee of a co-tenant and the vendee of such grantee 
 are necessary parties;^ so are the heirs at law of a deceased co- 
 tenant,* as well as the widow of the decedent who died seized of 
 the land sought to be partitioned.' It is error to proceed in her 
 absence, and make partition of the lands subject to the right of 
 dower;^" but the widow of a deceased co-tenant is not a necessary 
 party," as she has no right to interpose any objections to the pro- 
 ceedings for partition, for this is but a judicial determination of 
 what lands belong to her husband and, incidentally, of what 
 lands she shall be endowed. 
 
 A reversioner is a necessary party, where a bill is filed by a 
 person who is owner of an undivided share of the reversion as 
 well as of an undivided share of the present interest in the prop- 
 erty."' 
 
 And the holders of the legal title to land must be made parties 
 
 •Sebrig V. Merserean, Hopk. Ch. (N. Y.) 501, 2 L. ed. 502; I<ow v. 
 Holmes, 17 N. J. Eq. 148; Stewart v. Allegheny Bank, loi Pa. St. 342; 
 Stevens v. McCormick, 90 Va. 735, 19 S. E. Rep. 742. 
 
 » I Bart. Ch. Pr. 290; Stevens v. McCormick, 90 Va. 735; s. c. 19 S. E. 
 Rep. 742. 
 
 3 Wright, etc., V. Strothers, 76 Va. 857. 
 
 < Foster v. Newton, 46 Miss. 661; Richards v. Richards, 136 Mass. 126. 
 
 s Matthews v. Matthews, i Edw. Ch. 24, 6 L. ed. 248. 
 
 « Long's Appeal, 7 Pa. St. 151. 
 
 ' Boggess v. Meredith, 16 W. Va. i, 29. 
 
 ' Lyon V. Register, 36 Fla. 273; s. c. 18 So. Rep. 589. 
 
 9 I Bart. Ch. Pr. 202. '° Custis v. Snead, 12 Gratt. 260. 
 
 " Rodgers on Domestic Relations, § 420. " Idem. 
 
 '3 Striker v. Mott, 2 Paige, Ch. 387, 2 L. ed. 954. 
 
5IO BQTJITY PRINCIPLBS. 
 
 to a bill for partition, among those holding the equitable title;* 
 but this does not apply to a mere trustee in a deed of trust given 
 to secure the payment of a debt.' 
 
 The plaintiff in the suit may be any person having an un- 
 divided interest in the property sought to be partitioned, making 
 the other parties defendants,' and this too though he be not in 
 possession if he be entitled to immediate possession;* and a pur- 
 chaser of the interest of one of the several owners of a tract of 
 land may bring suit in conjunction with the others for a' parti- 
 tion, though he may still owe the purchase-money with a lien re- 
 tained for its payment.' And the plaintiff may be an infant 
 suing by its next friend.' 
 
 If the plaintiff, after the institution of a suit, to partition land, 
 sells his interest therein, the case proceeds in his name, as 
 though no such sale had taken place.' 
 
 § 378. "What sufficient averments of a bill in a suit for 
 partition — 
 
 The bill in equity for partition need not make formal deraign- 
 ment of title, or in fact any deraignment further than is neces- 
 sary to show how the parties became co-owners so as thus to 
 disclose the right of partition.* 
 
 It should describe and locate the premises,' but the description 
 need not be as full and accurate as required in a deed of convey- 
 ance. It is sufficient to give such general description as will lead 
 to the identification of the property on which the decree prayed 
 for is intended to operate.*" It should allege that the parties hold 
 the same together and undivided, giving the quantity of the es- 
 tate according to the fact, and the undivided interest, or show 
 that which each is entitled to, making of course the proper par- 
 ties and praying for partition." It is not necessary to allege 
 that the property has not been partitioned," nor is it necessary to 
 
 ■ Hunter v. Brown, 7 B. Mon. (Ky. ) 283. 
 
 ' Martin v Martin, 95 Va. 26, 27 S. E. Rep. 810. 
 
 3 Sample v. Sample, 34 Zan. 73. * Scarborough v. Smith, 18 Kan. 399. 
 
 s Hall V. Morris, 13 Bush. (Ky. ) 322. 
 
 ' Binks V. Sinks, 7 Baxter (Tenn. ), 253. 
 
 ' Gillespie v. Bailey, 12 W. Va. 70. 
 ' « Ransom v. High, 37 W. Va. 838; s. c. 17 S. E. Rep. 413. 9 Idem. 
 
 ■° Thurston v. Mink, 33 Md. 571. " Ransom v. High, supra. 
 
 " Patterson v. Martin, 33 W. Va. 494; s. c. 10 S. E. Rep. 817, opinion of 
 Brannon, J., at p. 819. 
 
PARTITION. Sir 
 
 aver that plaintiff is in possession as this is inferred from the 
 averment of the common seizin of the parties.* 
 
 And our statute provides that if the name or share of any per- 
 son interested in the subject of partition be unknown, so much 
 as is known in relation thereto shall be stated in the bill.' 
 
 ' Jenkins v Van Schaack, 3 Paige, Ch. 242, 2 I<. ed. 136. 
 ' Code, 1891, chap. 79, sec. 4. 
 
512 BQUITY PRINCIPI^BS. 
 
 CHAPTER XXXV. 
 
 PARTNERSHIP. 
 
 g 379. What constitutes a partnership, and the different kinds thereof. 
 
 380. Powers of copartners. 
 
 381. How assets of partnership applied as to payment of firm and partner 
 
 ship debts. 
 
 382. Suits by and between partners. 
 
 383. Settlement and accounting between partners. 
 
 384. Who may maintain a bill for an accounting of partnership affairs. 
 
 385. Mode of taking accounts in settlement of partnership affairs. 
 
 386. When and how a dissolution of a partnership is effected. 
 
 387. The effect of a dissolution of a partnership. 
 
 § 379. What constitutes a partnership, and the different 
 kinds thereof — 
 
 A partnership as between the parties themselves is a voluntary- 
 contract between two or more persons for joining together their 
 money, goods, labor, or any or all of them, with an understand- 
 ing that there shall be a communion of profits between them, 
 and for carrying on a legal business.^ A mere agreement to 
 share in the profits of an enterprise does not constitute a co- 
 partnership.' To constitute a partnership between parties who 
 share in the profits, the interest in the profits must be mutual — 
 each person must have a specific interest in them as a principal 
 trader; he is not a partner merely because he receives a part of 
 the profits as compensation for his services.' 
 
 Partnerships are either ordinary or limited. In the former, 
 each of the partners is severally liable for the firm debts, but in 
 the latter this several liability does not affect all of the partners 
 to the full extent of such debts.* At common law partners 
 were invariably liable for the full amount of partnership debts, 
 lyimited partnerships, therefore, exist solely by virtue of stat- 
 utes." There is also a further division of partnerships, in Jo 
 
 • Setzer v. Beale et al., 19 W. Va. 274. 
 
 " Chapline v. Conant, 3 W. Va. 507; Logie v. Black, 24 W. Va. i. 
 3 Sodiker v. Applegate, 24 W. Va. 411. ♦ George on Partnership, 90. 
 5 Idem. For our statutes on the creation of limited partnerships, see 
 Code, chap. 100, sees. 1-12. 
 
PARTNERSHIP. 513 
 
 trading and non- trading firms. ^ The test of the character of the 
 partnership is buying and selling. If it buys or sells, it is com- 
 mercial or trading. If it does not buy or sell, it is one of em- 
 ployment or occupation. Trading, in its business sense, signi- 
 fies, as a rule, the buying to sell again; but what are known as 
 trading partnerships include also partnerships formed for manu- 
 facturing or mechanical purposes. The importance of the dis- 
 tinction between trading and non- trading partnerships lies in the 
 fact that it is only in the case of trading partnerships that a 
 partner has the implied power to borrow money and give firm 
 mercantile paper therefor.^ 
 
 § 380. Powers of copartners — 
 
 Every member of an ordinary trading partnership has the im- 
 plied power to bind the firm by drawing, accepting or indorsing 
 bills of exchange, or by making and indorsing promissory notes 
 in its name and for the purposes of the firm;^ or to apply any of 
 the partnership moneys in his hands to the satisfaction of the 
 firm debts;* or, to assign a chose in action due the firm," or may 
 execute a deed of trust on personal property to secure the creditors 
 generally of the partnership.* 
 
 And one partner has the implied power to bind the firm by 
 check not post dated, drawn in the partnership name upon the 
 bankers of the firm.'' So, also, where one partner sells partner- 
 ship property, to pay his own individual debt, the entire firm is 
 bound by the act, if the vendee acted in good faith, that is if 
 the sale was for value and without notice.* So, too, where one 
 partner gives a firm note, borrowing money thereon, the firm is 
 lx)und without reference to the use made of the money so bor- 
 rowed.' But insolvent members of an insolvent firm cannot use 
 
 ' George on Partn. 91. ' Idem, 91, 92. ^ Idem, 224. 
 
 « Harper v. Hawkins, 8 W. Va. 291. s Clark v. Hogeman, 13 W. Va. 718. 
 
 « Williams v. Gillespie, 30 W. Va. 586; s. c. 5 S. E. Rep. 210; Scruggs v. 
 Burruss, 25 W. Va. 670. 
 
 1 17 Am. & Eng. Enc. Law, 1033; Story on Partnership, \\ loi, 102; Chicago 
 Trust & S. Bank v. Kiimare, 174 111. 358, 51 N. E. Rep. 607. 
 
 « Stokes V. Stevens, 40 Cal. 391; Kellog v. Fanche, 23 Wis. 21; Chipley v. 
 Keaton, 65 N. C. 534; Welles v. Mitchell, i Ired. (N. C.) 484; Kelly v. Green- 
 leaf, 3 Story, 93; Cloughton v. Forest, 17 Mo. 131. 
 
 « Smith V. Crowley, 29 Kan. 756; Benninger v. Hess, 41 Ohio St. 64; 
 "Waggener v. Freschl, 56 N. H. 49s; Onondaga County Bank v. De-Puy, 17 
 
 33 
 
514 EQUITY PRINCIP^BS. 
 
 the parinership property to pay their individual debts, leaving 
 the partnership debts unpaid.^ Nor can a partner enter an ap- 
 pearance so as to bind his firm in an actioti against the firm;^ nor 
 by submission of a firm controversy to arbitration;' nor by con- 
 fession of judgment;* nor by an act purporting to extend the 
 firm's business scope; nor by a guaranty. ° 
 
 § 381. How assets of partnership applied as to payment 
 of firm and other debts — 
 
 The assets of a firm are to be applied in the following order: 
 First, in the payment of the debts and liabilities of the firm to 
 persons who are not partners; second, in paying to each partner 
 ratably what is due from the firm to him for advances, as dis- 
 tinguished from capital; third, in paying to each partner ratably 
 what is due from the firm to him in respect of capital; fourth, 
 the ultimate residue, if any, is divisible among the partners in 
 the proportion in which profits are divisible under the partner- 
 ship contract.' 
 
 It is a fundamental rule of the law of partnership that the 
 firm debts must first be paid out of the firm's assets.' 
 
 § 382, Suits by and betvreen partners — 
 
 In matters of controversy or diflSculty between partners, it is now 
 most usual to resort to a court of equity for their final adjudica^ 
 tion and settlement, for while it is true that courts of law still 
 pretend to afford a remedy in case of dif&culty between partners, 
 by the action of account, that remedy is so incomplete and un- 
 satisfactory that it is now practically obsolete; and a complaining 
 partner almost universally lays his complaint before a court of 
 chancery, where he finds a prompt and efficient remedy, from 
 the superior facilities which it possesses of doing complete justice 
 between the parties.* Actions at law cannot be maintained by 
 one partner against the other, except after an accounting, 
 
 Wend. 46; L. ed., Bk. 3, pp. 13, 56; Whittaker v. Brown, 16 Wend. 505; L. 
 ed., Bk. 12, pp. II, 78, and note; Steel v. Jennings, Cheeves (S. C), 183; 
 Hayward V. French, 12 Gray (Mass.), 453. 
 
 ' Jackson Bank v. Dmfey, 72 Miss. 971; s. c. 13 L. R. A. 470. 
 
 ' George on Partnership, 217. 3 Mem. « Idem. s Idem, 2181 
 
 • Hyre et al. v. Lambert, 37 W. Va. 26; s. c. 16 S. E. Rep. 446. 
 
 1 Carper V. Hawkins, 8 W. Va. 291; Pettijohn v. Woodruff, 86 Va. 478; s. 
 c. 10 S. E. Rep. 715; Shackeford v. Shackeford, 32 Gratt. 481. 
 
 « 2 Beach, Mod. Eq. Jur., § 873. 
 
PARTNERSHIP. 515 
 
 balance struck, and express promise to pay.* But equity re- 
 moves the obstacles, and enables the partners to dissolve the 
 partnership, pay the debts, state the account, and ascertain and 
 divide the surplus; and where a person is a member of two 
 firms, one of the firms cannot sue the other, except in equity.^ 
 But a court of equity will not entertain jurisdiction of the affairs 
 of a partnership until by its decree a final adjustment of the busi- 
 ness can be effected.' 
 
 Partnership relations between parties engaged under contract 
 in a joint venture gives jurisdiction to courts of equity. Such 
 relations involve not merely a community of interest, but the 
 employment of a common stock, whether consisting of property 
 or mere labor and skill, in a common undertaking with a view to 
 common profit.* Before the interest of an individual partner can 
 be ascertained, as we have seen,* an account of the business, the 
 assets and liabilities must be taken so that the divisible surplus 
 can be known. ^ If a dissolution be sought, the common law 
 courts cannot afford relief. And so, also, a specific performance 
 of the partnership may be compelled.' One partner may be re- 
 strained from a course injurious to the rights of another, or de- 
 priving him of his due share in the direction of the business.' 
 
 § 383. Settlement and accounting bet^veen partners — 
 
 Under a bill to settle partnership accounts, the burden of proof 
 is on the plaintiff, and if he cannot furnish sufficient evidence to 
 establish a partnership and also to enable a commissioner to state 
 a partnership account, his suit necessarily fails.' 
 
 In taking an account between partners at the winding up of a 
 firm, each partner is entitled to be allowed against the other every- 
 thing he has advanced or brought in as a partnership transaction, 
 and to charge his partner in his account with what he has failed 
 to bring in, and with what he has abstracted from the joint fund 
 beyond his just proportion, and nothing will be considered as the 
 share of any of them, but that proportion of the residue, to which 
 each, on a balance of the account so taken, may be ascertained 
 to be entitled.'" 
 
 ' Idem. ' Idem. 3 Idem. * Tillar v. Cook, 77 Va. 477. 
 
 s Ante, ? 65. ' Tillar v. Cook, supra. ' Idem. " Idem. 
 
 9 Hinkson v. Irvin, 40 W. Va. iii; s. c. 20 S. E. Rep. 849; 2 Beach, Mod. 
 Eq. J«r., ? 875. 
 '" Moore v. Wheeler, 10 W. Va. 35. 
 
5l6 EQUITY PRINCIPLES. 
 
 But in the absence of any positive stipulations, or the abandon- 
 ment of them by the acts and conduct of the parties, courts of 
 equity, as between the partners, will commence with the last 
 stated account between them and deem that conclusive, upon all 
 antecedent transactions, unless, indeed, some gross or palpable 
 error or fraud is shown.' 
 
 § 384. Who may maintain a bill for an accounting of part- 
 nership affairs — 
 
 Any partner may maintain the bill, although he is a debtor of 
 the firm; for he has a right to ascertain his ultimate liability. 
 And a partner will be entitled to an account notwithstanding he 
 has failed to pay in the whole sum agreed by him to be contrib- 
 uted.' Moreover, the fact that a partner has sold his interest to 
 a third person does not deprive him of his right to file a bill against 
 his copartner for dissolution and account. A dormant partner 
 may bring the suit, although to evade his creditors his connec- 
 tion with the firm has been concealed. Illegality of the copart- 
 nership, pleaded by one partner, is no reason for a refusal to ac- 
 count; for although the partnership may be illegal and immoral, 
 it does not follow that it is illegal or immoral for the parties to 
 it to fairly adjust the profits and losses that have resulted from 
 it.' Where the bill is- filed by one partner against his copartners, 
 after the termination of the partnership, all the parties are to be 
 regarded as actors, and the decree should settle the copartnership 
 concerns, as if each were a complainant filing his bill against his 
 copartners; and the court has jurisdiction, though some of the 
 partners are nonresidents.* 
 
 But it must not be overlooked, that a bill merely for the set- 
 tlement of partnership accounts, while the partnership is still ex- 
 isting, cannot be maintained;® and if filed for the settlement of 
 the accounts of the firm while it is still in existence, it must 
 either directly pray the dissolution of the partnership, or show 
 that it is contemplated, so that the general prayer for relief may 
 be interpreted to include a prayer for dissolution.* 
 
 ■ Moore v. Wheeler, supra. 
 
 ' 2 Beach, Mod. Eq. Jur., § 876. 3/dem. *Idem. 
 
 s Coville & Garber v. Oilman, 13 W, Va. 314, 325, ^Idetn, 
 
PARTNERSHIP. 517 
 
 § 385. Mode of taking accounts in settlement of partner- 
 ship affairs — 
 
 In addition to wliat lias been said under a former section,' we 
 here further submit some principles as to partnership account- 
 ing: In a copartnership accounting, all the transactions relating 
 to the copartnership must be considered to arrive at a complete 
 settlement.^ But personal accounts or demands or other matters 
 between partners will not be considered.' When one party holds 
 the partnership books and refuses the others access to them, less 
 particularity of statement is required than when complainant 
 had used the books; and the court will not disturb a settlement 
 and final accounting of partnership matters in the absence of 
 fraud.* In an action for a copartnership accounting and dissolu- 
 tion, an allegation that a portion of the assets consists [of real 
 estate standing in the names of the partners does not make the 
 action one of partition, ejectment or mesne profits." 
 
 In taking such account one partner is not entitled to claim from 
 the partnership compensation for his services in the business with- 
 out a special contract for such compensation." 
 
 § 386. \Vhen and ho^v a dissolution of a partnership is 
 effected — 
 
 It is a well-settled principle in the law of partnership, that if 
 the partnership be organized for no definite or fixed period, that any 
 partner may withdraw at a moment's notice when he pleases, and 
 thus dissolve the partnership.' But to enable one or more part- 
 ners to dissolve the partnership at his or their will, the renunci- 
 ation must be made in good faith, and the renunciation is not 
 made in good faith when it is made in order to appropriate to 
 himself or themselves the profits which the firm is entitled to 
 receive.* 
 
 A pamership for a limited period cannot be dissolved at the 
 mere pleasure of one of the partners, but may be dissolved for 
 reasonable cause.' The assignment by one partner of all his in- 
 terest in the partnership and its property to trustees for the pay- 
 
 ^Anie, ? 382. 
 
 = 2 Beach, Mod. Eq. Jut., § 879. See Barkesdale v. Canada, 76 Va. 899. 
 
 ^Idem. *Idem. sidem. 
 
 <• Roots V. Salt Co., 27 W. Va. 483. 
 
 ^ McMalion v. McCleman, 10 W. Va. 419. '^Idem. 
 
 s Idem; Cole v. Maxley, 12 W. Va. 730. 
 
5l8 BOUITY PRINCIPI<ES. 
 
 ment of debts operates, ipso facto, as a dissolution of partner- 
 ship.^ 
 
 § 387. The effect of a dissolution of a partnership— 
 
 Until its affairs are settled, and outstanding engagements made 
 good, a partnership must, in contemplation of law, have a con- 
 tinuance, so far as respects the winding up of its affairs.^ 
 
 Generally a dissolution of a partnership leaves every partner 
 in full power (unless upon the dissolution it has been exclusively 
 confided and delegated to some other partner or person) to pay 
 and collect debts due to the partnership, to apply the partnership 
 funds and effects to the discharge of the partnership debts; to 
 adjust and settle the unliquidated debts of the partnership; to 
 receive any property belonging to the partnership; and to make 
 due acquittances, discharges, receipts and acknowledgments of 
 the acts in the premises/ But after dissolution one partner can- 
 not bind the firm in reference to any new contract.* Therefore, 
 after dissolution, one partner cannot, without special authority 
 or the consent of his copartners, execute a note for a debt due 
 from the partnership that will bind the other partners, nor can 
 he, without such authority or consent, transfer or pledge the 
 partnership goods or securities to a third person even to secure 
 a debt due to such third person from the partnership.* 
 
 ' Conrad v. Buck, 21 W. Va. 396. 
 
 " RuSner v. Hewitt, 7 W. Va. 585. ' Idem. 
 
 * Conrad v. Buck, 21 W. Va. 396; Roots v. Salt Co., 27 W. Va. 60. 
 
 s Roots V. Salt Co., supra. 
 
PRINCIPAI, AND SURETY. 5 19 
 
 CHAPTER XXXVI. 
 PRINCIPAL AND SURETY. 
 
 I 388. Suretyship defined and the nature of the contract. 
 
 389. Who is principal and who surety, and how this relation may be 
 
 shown. 
 
 390. Contribution among co-sureties. 
 
 301. Rights and remedies of the surety as to the principal. 
 
 392. Rights and remedies of surety as to creditors. 
 
 393. What will release the surety. 
 
 394. What will not release a surety. 
 
 395. Duty of the obligee after notice by the surety to sue. 
 
 § 388. Suretyship defined and the nature of the con- 
 tract — 
 
 A surety, as defined by our court, is a person who, being liable 
 to pay a debt or perform an obligation, is entitled, if it is en- 
 forced against him, to be indemnified by some other person who 
 ought himself to have made payment or performance before the 
 surety was compelled to do so; and the relation is fixed entirely 
 by the arrangements and equities between the debtors or obligors 
 and may or may not be known to the creditors.' 
 
 The undertaking of a surety cannot be extended beyond the 
 terms of the contract into which he has entered;* and such con- 
 tract is to be construed strictly and in favor of the surety.' 
 Hence any change of the contract, without the surety's consent, 
 releases him, however immaterial, and even if such change be to 
 his advantage.* 
 
 Sureties are primarily Uable, the same as their principals, to 
 third parties in whom is vested a right of action against the 
 
 ' Johnson v. Yonng et al., 20 W. Va. 614. 
 
 ' McGowney v. State, 20 Ohio, 93; Bank of Washington v. Barrington, 2 
 Pa. 27. 
 
 ' New Orleans Canal & Banking Co. v. Hagan, i Louisiana, Ann. 62. 
 
 * Dey V. Martin, 78 Va. i; Christian & Gunn v. Keen, 80 Va. 369; Sanders 
 V. Bagwell, 37 S. C. 238; s. c. 7 h. R. A. 743; McCartney v. Ridgway, i6o 
 111. 129; s. c. 32 L. R. A. 555. 
 
520 BQUITY PRINCIPI,ES. 
 
 principals.^ But where the creditor goes into equity to enforce 
 his debt, against principal and surety, the burden will be laid 
 first upon the principal.^ 
 
 § 389. Who is principal and •who surety, and how this 
 relation may be shown — 
 
 Where persons jointly sign a bond or other instrument, they 
 are presumed to be principles, except where it is otherwise indi- 
 cated on the face thereof.' But whether such relationship so ap- 
 pears or not, it may be established by parol evidence;* and if it 
 does appear that a party has signed an instrument as surety, 
 
 • Brooks V. Miller, 29 W. Va. 499; s. c. 2 S. E. Rep. 219; Gold v. Mar- 
 shall, 76 Va. 668; Penn v. Ingles, 82 Va. 65; Meade v. Grigsby, 26 Gratt. 
 612. 
 
 Where two persons sign an obligation for the payment of money, and it is 
 expressed in it that one signs as surety, and he annexes to his signature the 
 ■word "surety," still both are bound jointly. Riley v. Jarvis, 43 W. Va. 43; 
 s. c. 26 S. E. Rep. 366. 
 
 " Wytheville Crystal Ice & Dairy Co. v. Prick Co., 96 Va. 141; s. c. 30 S. 
 E. Rep. 491; Horton v. Bond, 28 Gratt. 815; Penn v. Ingles, 82 Va. 65; Pax- 
 ton V. Rich, 85 Va. 378, 7 S. E. Rep. 531. 
 
 "Nor is the position, as a general proposition, well taken, that the plaintiff 
 in the motion at law ought to be compelled to exhaust his remedies against 
 the principal debtor, Hairston, before proceeding against the sureties. It is 
 true that, where the creditor seeks in a court of equity to enforce payment 
 of a debt against the principal debtor and his sureties — all the parties being 
 before the court — relief will be granted in accordance with the equities of 
 the parties inter sese, where that can be done without material delay or in- 
 jury to the creditor; that is, the burden will be laid first upon the principal 
 debtor, and his property will be subjected to the exoneration of that of the 
 sureties." Horton v. Bond, 28 Gratt. 815. Muse v. Friedenwald, 77 ya. 57. 
 "But this does not prevent the creditor from proceeding at law against the 
 principal and the sureties in the first instance and obtaining a judgment and 
 execution against them jointly. Nor will a court of equity interfere by in- 
 junction in such case, except under peculiar circumstances, the general rule 
 being that the creditor is under no obligation to look to the principal debtor 
 or to his property, or to exhaust his remedies against the latter before re- 
 sorting to the surety." Meade v. Grigsby's Adm'rs, 26 Gratt. 612; 2 Lead. 
 Cas. Eq., Pt. I, p. 317; Penn v. Ingles, 82 Va. 67, 68. 
 
 5 Harper v. McVeigh, 82 Va. 751; Willis v. Ives, 9 Miss. 307; Crafts v. 
 Mott, 4 N. Y. 603; I^vy V. Hampton, i McCord (S. C), 145; Brooks v. Mil- 
 ler, 29 W. Va. 499; s. c. 2 S. E. Rep. 219; Caskie v. Hawison, 76 Va. 85; Par- 
 sons V. Harrold (W. Va.), 32 S. E. Rep. 1002. 
 
 * Fowler v. Alexander, i Heisk. (Tenn.) 425. 
 
PRINCIPAI, AND SURETY. 52 1 
 
 -parol proof may be used to show that in reality he is the princi- 
 pal debtor.' 
 
 § 390. Contribution among co-sureties — 
 
 As between co-sureties, there should be proportionate burden.* 
 So that, as already shown,^ one who has been compelled to pay 
 the whole debt, the principal being insolvent, has a right in equity 
 to compel his co-surety to pay his equitable equal part.* But if 
 a surety has in his possession or under his control money or 
 means which he can apply towards the debt of the principal and 
 does not apply the same, and pays the debt himself out of his 
 own money, he cannot compel contribution among his co-sureties 
 so as to reimburse him in that respect.* 
 
 The equitable right of the surety to the substitution of the lien 
 of the creditor's judgment on the property cannot be impaired 
 by a subsequent transaction of the principal debtor with third 
 persons.* 
 
 § 391. Rights and remedies of the surety as to the prin- 
 cipal — 
 
 There is an impHed contract, by operation of law, that the 
 surety shall be reimbursed by his principal to the amount he has 
 paid for his principal by reason of the contract of suretyship, and 
 he cannot receive more than this unless by reason of an express 
 contract with his principal.^ 
 
 The implied contract in case of suretyship is, that the surety 
 shall be indemnified only, and he will not be allowed to specu- 
 late out of his principal ; consequently, if the surety obtains a 
 credit on the debt of his principal without pecuniary cost, loss or 
 damage to himself, he will not be entitled to recover anything for 
 procuring such credit, although his principal avails himself of 
 
 ' Boulware v. Lewis, 83 Va. 679; s. c. 3 S. E. Rep. 289. 
 
 ' Hawker v. Moore, 40 W. Va. 49; s. c. 20 S. E. Rep. 848. 
 
 3 Ante, I 64. 
 
 ■• Hawker v. Moore, supra; Pe3don v. Stuart, 88 Va. 50; s. c. 16 S. E. Rep. 
 l6o. 
 
 5 Neily v. Bee, 32 W. Va. 519; s. c. 9 S. E. Rep. 898; Boulware v. Lewis, 
 83 Va. 289; s. c. 3 S. E. Rep. 289; Boughner v. Hall, 24 W. Va. 249. 
 
 ' Johnson v. Young, 20 W. Va. 614. See further as to the subject of this 
 section, ante, ? 64. 
 
 7 Matthews v. Hall, 21 W. Va. 510. 
 
522 EQUITY PRINCIPLBS. 
 
 the benefit of such credit and the same is allowed to him by the 
 creditor.' 
 
 Where a surety pays the debt of his principal, he is entitled 
 to interest on the whole amount paid, principal and interest, from 
 the date of such payment in an action or suit against his princi- 
 pal." Therefore, if the payment by the surety was made in de- 
 preciated currency, the amount of the recovery from the princi- 
 pal will be limited to the value of such currency at the time of 
 the payment and costs. ^ 
 
 Whether a surety who has paid costs and expenses on account 
 of the debt of his principal can recover the same from his prin- 
 cipal depends upon the circumstances of each case.* In order to 
 do so, it is incumbent on the surety to show that the litigation 
 in which the costs and expenses were incurred was entered into 
 in good faith and upon reasonable grounds, and was a measure 
 of defense, necessary to the interest of both parties, and was cal- 
 culated so to result. But the principal is not liable for costs un- 
 necessarily incurred by the surety in litigation carried on by him 
 in order to get rid of his liability or to defeat the efforts of a party 
 seeking to enforce it.'' 
 
 Where the liability of the principal to the surety is fixed by 
 express contract, the principal will be compelled to pay to the 
 surety the amount of surety so agreed upon without reference to 
 the amount of the Uability actually incurred by the surety to the 
 creditor.* 
 
 As to the surety's remedies for relief against his principal, he, 
 in the first place, is entitled to all means of payment held by the 
 creditor against the principal;^ and where the principal is dead, 
 the surety may file a bill quia timet against the creditor and 
 against the personal representatives of the debtor to compel the 
 latter to pay the debt so as to exonerate the surety from respon- 
 sibility. He may enforce for his exoneration any lien of the 
 creditor on the estate of his principal, and may bring any suit in 
 equity which the creditor Could bring for a settlement of the ad- 
 ministration account on the estate of the deceased, and for the 
 
 ' Matthews v. Hall, supra. ' Cranmer v. McSwords, 26 W. Va. 412. 
 
 3 Feamster v. Withrow, 12 W. Va. 611. 
 
 * Cranmer v. McSwords, supra. 
 
 5 Cranmer v. McSwords, supra, at p. 417. 
 
 * Southall V. Roush, 85 Va. 403, s. c. 7 S. E. Rep. 534. 
 ' Hauser v. King, 76 Va. 731. 
 
PRINCIPAI, AND STTRBTY. 523 
 
 administxation of the assets, whether legal or equitable; but the 
 creditor must be a party that he may receive the money when it 
 is recovered.^ 
 
 § 392. Rights and remedies of surety as to creditors — 
 
 As we have already shown,' the obligation of the surety is a 
 primary one at law, and the creditor cannot be compelled to seek 
 his remedy first against the property of the principal debtor; but 
 where the resort to equity is necessary to obtain the payment of 
 a debt, and both principal and surety are parties to the suit, the 
 court will compel the creditor to pursue the principal debtor 
 first, and exhaust his estate before selling the property of the 
 surety, unless to do so will in the opinion of the court, unduly 
 delay the creditor in the collection of his debt.' 
 
 But this exception to the rule does not always obtain in a 
 court of equity. Thus in a suit against a guardian and his 
 sureties by the ward, a joint decree may at once be rendered 
 against them on their official bond, without first exhausting the 
 property of the guardian before going on his sureties.* 
 
 A surety has a right to be subrogated to all the rights and 
 remedies of the creditor, but not to the injury of any one who, by 
 any rule of strict law, or in equity and good conscience, stands on 
 higher ground, or for any reason has a better right. Such a one 
 will not be displaced or his right disturbed. This is the essence 
 of the doctrine of subrogation.* 
 
 Where there are several sureties on a joint obligation and the 
 
 ' Stephenson v. Taveners, 9 Gratt. 398. See ante, § 260. 
 
 » Ante, I 388, p. 519. 
 
 3 Opinion of Snyder, J., in Armstrong v. Poole, 30 W. Va. 663; s. c. 5 S. 
 E. Rep. 257; National Bank v. Bates, 20 W. Va. 210; Paxton v. Rich, 85 Va. 
 378; s. c. 7S. E. Rep. 531; Beckham v. Duncan (not reported in Va. Reps.), 
 9S. E. Rep. 1002; Womack v. Glasgow, 84 Va. 9, 5 S. E. Rep. 1257. 
 
 * Barnes V. Trafton, 80 Va. 524. "There is no good reason why a person 
 having a valid claim against a guardian and his sureties for a breach of the 
 condition of the bond of the principal, for which principal and surety 
 are alike expressly bound, should be required to make two bites at one 
 cherry, or possibly a fruitless hunt, first after the principal, and then be 
 turned round to pursue the surety, when the ends of justice can be better 
 attained, and at less expense, by going at once after all, according to the 
 condition of the bond." Barnes v. Trafton, 80 Va., top p. 524, marg. 
 
 p. 534- 
 s Hawker v. Moore, 40 W. Va. 49; s. c. 20 S. E. Rep. 848. 
 
-^^^ 
 
 524 EQUITY PRINCIPI,ES. 
 
 bill is taken for confessed, and then one or more of the sureties 
 disproves the plaintiff's case, unless the defense be purely per- 
 sonal to the one making the defense, such defense enures to all 
 and the bill must be dismissed.' Thus if one of the sureties 
 pleads the statute of limitations, it enures to the benefit 'of 
 all, and the plaintiff cannot recover in the suit, and the bill must 
 be dismissed.' 
 
 A surety may also enforce every security for the debt which 
 the creditor has against the principal.' If the creditor without 
 the assent of the surety has parted with any security he may 
 have had in his hands, by which the debt; or a part, might have 
 been paid, the surety will be discharged pro tanto, and may de- 
 fend against the demand of the creditor accordingly.* But to re- 
 lease a surety by any act or contract between the creditor and 
 the principal, the creditor must know at the time that the party 
 is a surety.' 
 
 § 393. What ^vill release the surety — 
 
 In addition to what has already been said with reference to the 
 rights of a surety as to the creditor, these further principles are 
 here laid down: If a creditor attempts to collect his debt, and 
 compromises the same, and by such compromise puts it out of the 
 power of the surety, against whom he subsequently proceeds, to 
 be subrogated to the rights of the creditor and reimburse himself 
 if he paid the debt, the right of the creditor to proceed against 
 the surety is by such act destroyed.' So, too, if an obligee in a 
 bond or writing under seal extend the time of its payment by 
 contract with the principal for a valuable consideration without 
 the knowledge or consent of the surety, the surety is thereby 
 discharged in equity, but not at law.^ 
 
 The principle upon which an agreement for an extension of 
 time discharges a surety is that the creditor thus deprives the 
 surety of the means of relieving himself by paying the debt and 
 
 ' Ashby V. Bell, 80 Va. 811. ' Idem. 3 Penn v. Ingles, 82 Va. 65. 
 
 • Loop V. Summers, 3 Rand. 511; Hauser v. King, 76 Va. 731; Taylor v. 
 V. Cox, 32 W. Va. 148; s. c. 9 S. E. Rep. 70; First Nat. Bk. v. Parsons, 45 
 W. Va. 688, 32 S. E. Rep. 271. 
 
 5 Parsons v. Harold (W. Va.), 32 S. E. Rep. 1002. 
 
 * Renick v, Luddington, 14 W. Va. 367. 
 
 ' Sayre v, King, 17 W. Va. 562; Glenn v. Morgan, 24 W. Va. 467; Parsons 
 V. Harold (W. Va.), 32 S. E. Rep. 1002, 
 
PRINCIPAI, AND SURETY. 525 
 
 proceeding immediately against the principal, or, without paying, 
 by filing his bill quia timet to compel payment, or by notice to 
 the creditor under the statute to proceed at once to make his 
 debt.' The surety is not discharged by an act which in no 
 manner affects his right or impairs the remedies of the creditor.'* 
 
 As illustrative of this principle, it may be stated that the actual 
 payment of either usurious or legal interest in advance, is a suf- 
 ficient consideration to make valid a contract to extend the time 
 of payment of a debt, so as to discharge the surety,' but a mere 
 naked unexecuted agreement to pay such interest will not dis- 
 charge the surety.* 
 
 An alteration of the contract in the slightest degree without 
 the consent of the surety will operate his discharge.'' So the re- 
 lease of the levy of an execution on the property of the debtor, 
 sufficient in amount to satisfy the debt, without the consent of 
 the surety, will release the surety from all liability.' 
 
 § 394. AVhat w^ill not release a surety — 
 
 There are many things that may be done by a creditor as mere 
 matters of favor or indulgence to a principal that will not release 
 a surety.' A creditor is not bound to active diligence, in prose- 
 cuting his demand, and, if he remains merely passive, his rights 
 against the surety are not thereby impaired.^ A mere counter- 
 mand of an execution by the creditor, after it goes into the hands 
 the sheriff, but before it is levied, does not release the surety of 
 the execution debtor;' nor does the mere continuance at a term 
 of court of a suit against a principal debtor by consent of the 
 creditor, in the absence of a valid and binding contract to make 
 such continuance, operate to release the surety.^" Unless the 
 creditor without the consent of the surety make a valid and 
 
 ' First Nat. Bank v. Parson, 45 W. Va. 688, 32 S. E. Rep. 271. 
 
 = Idem, citing Adams v. Logan, 27 Gratt, 201. 
 
 3 Parsons v. Harrold (W. Va.), 32 S. E. Rep. 1002. < Idem. 
 
 5 Leonard v. County Court, 25 W. Va. 46; Christian & Gum v. Keen, 80 
 Va. 369; Day v. Martin, 78 Va. i. 
 
 ' McKenzie v. Wiley, 27 W. Va. 658. As to how the contract of a surety 
 should be construed, see McCartney v. Ridgway, 32 L. R. A., at page 565. 
 
 ' Bank of Wheeling v. Evans, 9 W. Va. 373; Hunter v. Wilburn, 23 W. 
 Va. 166; Gilmer v. Baker, 24 W. Va. 72; Knight v. Charter, 22 W. Va. 422; 
 First National Bank v. Parsons, 45 W. Va. 680, 32 S. E. Rep. 271. 
 
 * Knight V. Charter, supra. » Idem. 
 
 " First Nationaf Bank v. Parsons, 45 W. Va. 688, 32 S. E. Rep. 271. 
 
526 BQUITY PRINCIPLES. 
 
 binding contract for a good consideration to give indulgence to 
 the principal debtor, so as to tie up bis bands from proceeding to 
 enforce bis demand against said principal debtor, at any moment 
 be may be required by the surety to do so,^ sucb indulgence will 
 not release tbe surety from tbe obligation of his contract.^ 
 
 In a bill filed by sureties seeking to be relieved from the 
 obligation of their contract on the ground that indulgence has 
 been given to the principal debtor by the creditor, it must show 
 on its face the existence of every fact necessary to entitle them 
 to such relief; and if it fail to show these facts, and also that 
 such indulgence was granted without or against their consent, the 
 bill is fatally defective, and a demurrer thereto ought to be sus- 
 tained.' 
 
 A release of a levy of an execution upon the property of a 
 surety will not release a co-surety from liability.' Those bound 
 to the same thing, though by different instruments, at different 
 times, and without one another's knowledge, are co-sureties. 
 Not so where the obligations are for wholly distinct things, though 
 arising from the same principal indebtedness. ° 
 
 When succeessive indorsers all indorse for accommodation of 
 maker, though at different times and without mutual agreement, 
 they are co-sureties, and in equity liable to contribution. The 
 ignorance of one that another signed the note does not affect 
 their relation as co-sureties.' 
 
 § 395. Duty of the obligee after notice by the surety to 
 sue — 
 
 Our statute provides that the surety or guarantor or indorser 
 (or his personal representative) of any person bound by any con- 
 tract, may, if a right of action has accrued thereon, require the 
 
 ' Knight V. Charter, supra. 
 
 ' See Kiger v. Sipe, 89 Va. 507, 16 S. E. Rep. 627. » Knight v. Charter, supra. 
 
 * Alexander's Heirs v. Byrd, 85 Va. 690; s. c. 8 S. E. Rep. 577. 
 
 s Rosenbaum v. Goodman, 78 Va. 121. 
 
 « Stoveall V. Border Grange Bank, 78 Va. 188. 
 ' Negotiable note ran thus: "Sixty days after date we, W. & Co., principal, 
 and S. & I/., securities, promise to pay," etc.; the note was signed by L. 
 after the other parties had signed it, without the knowledge of S., and W. 
 & Co. agreed with L,., also, without the knowledge of S., "that there should 
 be no trouble about the note, that W. & Co. would take care of it." Held, 
 this is a joint promise. L. is bound as co-surety with S., and bound to con- 
 tribute. Stovall V. Border Grange Bank, supra. 
 
PRINCIPAL ANB SURETY. 527 
 
 creditor or his personal representative, by notice in writing, forth- 
 with to institute suit thereon; and if he be bound in a bond with 
 collateral condition or for the performance of some collateral 
 undertaking, he shall also specify in such requisition the breach 
 of the condition or undertaking for which he requires suit to be 
 brought.^ 
 
 And the Code further provides that if such creditor or his rep- 
 resentative shall not, in a reasonable time after such requisition, in- 
 stitute suit against every party to such contract who is resident in 
 . this state, and not insolvent, and prosecute the same with due 
 -diligence to judgment and by execution, he shall forfeit his right 
 to demand of such surety or his estate, and all his co-sureties and 
 their estates, the money due by any such contract for the pay- 
 ment of money, or the damages sustained by any breach of the 
 collateral condition, or undertaking specified as aforesaid. But 
 the conditions, rights and remedies against the principal debtor 
 shall remain unimpaired thereby.^ 
 
 The party to whom the notice under this statute should be 
 given is the party having the legal title to the claim and the 
 light to institute suit, and not a party merely claiming to have 
 an equitable ownership.' 
 
 Where one surety in a bond g^ives notice to the obligee to sue 
 the obligor, the statute does not peremptorily require the obligee, 
 after obtaining judgment, to sue out execution upon it; it only 
 requires him to use due diligence in prosecuting suit "to judg- 
 ment, and by execution. "* In such case, where the creditor has 
 not been guilty of laches, but the clerk has refused to issue the 
 execution, on the ground that the stay law forbade it, and the 
 court has sustained him in it, whether the judgment of the court 
 was right or wrong in enforcing the stay law, negligence cannot 
 be imputed to the creditor.' 
 
 Upon such notice to the -creditor by a surety, the creditor is 
 not reqtiired to pursue the estate of the principal in equity to 
 impeach an alleged fraudulent conveyance, or to subject an equity 
 of the principal to the payment of his debt, or to exhaust his 
 remedies against the principal before he can have satisfaction out 
 of the estate of the surety.* 
 
 ' Code, ch. loi, ? i, p. 722. ' Code, ch. loi, § 2, p. 722. 
 
 » Gillilan v. Ludington, 5 W. Va. 128. 
 
 * Harrison v. Price, 25 Gratt. 553. s Harrison v. Price, supra. 
 
 o Harrison v. Price, supra. 
 
528 BQUITY PRINCIPI,ES. 
 
 CHAPTER XXXVII. 
 
 SPECIFIC PERFORMANCE. 
 
 I 396. Principles governing the specific perfonnance of contracts. 
 
 397. Character of contract entitling party to specific performance. 
 
 398. When contracts for specific performance need not be in writing. 
 
 399. As to the vendor's title in suits for specific performance. 
 
 400. What persons may compel specific performance. 
 
 401. Who should be defendants in suits for specific performance. 
 
 402. What a sufficient signing of the contract under the statute of 
 
 frauds. 
 
 403. As to the use of parol evidence to explain the contract for the sale 
 
 of real estate. 
 
 404. As to the enforcement of options for the purchase of real estate. 
 
 405. What contracts will be specifically enforced, together with some il~ 
 
 lustrative instances of specific performance. 
 
 406. What contracts will not be specifically enforced together with some 
 
 further illustrative instances as to specific performance. 
 
 407. As to specific performance of contracts against married women. 
 
 i 408. As to the allegations of the bill in a suit for specific performance. 
 
 409. As to the defense to suits for specific performance. 
 
 410. The decree in suits for specific performance. 
 
 § 396. Principles governing the specific performance of 
 contracts — 
 
 The exercise of the equity branch of jurisprudence respecting 
 the specific performance of contracts is not a matter of right in 
 either party, but matter of discretion in the court, not, indeed, 
 an arbitrary or capricious discretion, dependent on the mere 
 pleasure of the judge, but a sound and reasonable discretion, 
 which governs itself as far as it may, by general rules and prin- 
 ciples, but, at the same time, which withholds or grants relief 
 according to the circumstances of each particular case, when 
 these rules and principles will not furnish any exact measure of 
 justice between parties.^ But where a contract respecting real 
 
 ' Lowry V. Buffington, 6 W. Va. 249, 255; West Va. O. & O. L. Co., 14 
 W. Va. 637; Abbott v. I/'Hommedieu, lo W. Va. 677; Rader v. Neal, 13 W. 
 Va. 873; Campbell v. Titterman's Heirs, 20 W. Va., 398; Knott v. Shepherds- 
 town Mfg. Co., 30 W. Va. 790; s. c. 5 S. E. Rep. 266. 
 
SPBCIFIC PERFORMANCB. 529 
 
 property is, in its nature and circumstances, unobjectionable, it 
 is as mucb a matter of course for courts of equity to decree a 
 specific performance of it as it is for a court of law to give 
 damages for the breach of it. And generally courts of equity 
 will decree a specific performance when the contract is in 
 writing and is certain and is fair in all its parts, and is for an 
 adequate consideration and is capable of being performed, but 
 not otherwise. • 
 
 And in Ballard v. Ballard,' the court says that "the doctrine 
 that a biU in equity for the specific execution of a contract rests 
 in the sound discretion of the court in view of the facts and cir- 
 cumstances and does not require its interpostion ex debito justiiiae, 
 has a very Umited application in modem courts of equity. The 
 rules and limitations which govern such courts are no less 
 rigorous and definite than those governing courts of law." 
 
 § 397- Character of contract entitling party to specific 
 performance — 
 ^Before a court of equity will exercise its discretion in the 
 matter of specifically enforcing a contract, its terms must be 
 shown by competent proof to be certain, definite and fair.' 
 
 It must also be based upon a valuable consideration;* and its 
 certainty must relate to all its subject-matter, its stipulations, its 
 purposes, its parties and the circumstances under which it is 
 made ;* and the contract must also be just and equitable and free 
 from fraud and in harmony with equity and good conscience. ° 
 
 The contract must be complete; that is, the negotiations must 
 
 ' Abbott V. L'Hommedieu, supra; Conway v. Sweeney, 24 W. Va. 643; 
 Ballard v. Ballard, 25 W. Va. 470. 
 
 ' 25 W. Va. 471. 
 
 3 Patrick v. Horton, 3 W. Va. 23, Matthews v. Jarrett, 20 W. Va. 415; 
 Westfall V. Cottrill, 24 W. Va. 763; Blankenship v. Spencer, 31 W. Va. 510; 
 s. c. 7 S. E. Rep. 433; Ry. Co. v. Lewis, 76 Va. 835; Iron Co. v. Gardiner, 
 79 Va. 309; Literall v. Jackson, 80 Va. 612. 
 
 ■• Hissam v. Parish, 41 W. Va. 686; s. c. 24 S. E. Rep. 600; Showalter v. 
 Hambrick (Va.), 25 S. E. Rep. 362, 102; Keffer v. Grayson, 76 Va. 51'- 
 Halsey v. Peters, 79 Va. 70. 
 
 5 Hissam v. Parish, supra; Graybill v. Braugh, 89 Va. 895; s. c. 17 S. E. 
 Rep. 558; Wood V. Dickey, 90 Va. 160; s. c. 17 S. E. Rep. 818; Shenandoah 
 Val. R. Co. V. Dunlap, 86 Va. 346; s. c. 10 S. E. Rep. 239. 
 
 •■ 2 Beach, Mod. Eq. Jiur., ? 567- 
 
 34 
 
530 EQUITY PRINCIPLES. 
 
 have been concluded between the parties as to the entire con- 
 tract.^ The price to be paid by the purchaser must have been 
 fixed and definitely agreed upon;* and, where this is neither as- 
 certained nor made determinable, the contract cannot be specific- 
 ally enforced.' So, too, the subject-matter of the contract must be 
 so described as to be ascertained with certainty.* The contract 
 as to this matter must be sufiSciently definite to enable the pur- 
 chaser to show what he regarded himself as actually buying.* 
 The description need not, however, be so certain and specific as 
 to exclude a resort to parol evidence for the purpose of determin- 
 ing the exact subject-matter of the contract." But a misunder- 
 standing of the parties as to the identity of the land to which 
 the contract relates will prevent a decree for its specific per- 
 formance.' 
 
 And a court of equity will not entertain jurisdiction for the 
 specific performance of an agreement respecting goods, chattels, 
 stock, choses in action, and other things of a merely personal 
 nature, where compensation in damages furnishes a complete 
 and satisfactory remedy. ° 
 
 § 398. \Vhen contract for specific performance need not 
 be in -writing — 
 
 Our statute provides that no action shall be brought upon any 
 contract for the sale of real estate, or the lease thereof, for more 
 than a year, unless the contract or some memorandum thereof be 
 
 » 2 Beach, Mod. Eq. Jur, § 579. 
 
 " Idem, i 580; Pom., Spec. Perf., 5 149; Graham v.Call, 5 Mtmf. 396. 
 
 ' Pry, Spec. Perf. (2d ed.) 158, 159; Woodruff v. Woodruff, 44 N. J. Eq. 
 (17 Stew.) 349, I L. R. A. 380; Graham v. Call, supra. 
 
 * 2 Beach, Mod. Eq. Jur., ? 583; Hodges v. Kowing (Conn.) 7 L. R. A. 87; 
 Iviterall v. Jackson, 80 Va. 610. 
 
 5 2 Beach, Mod. Eq. Jur., g 583; Fry, Spec. Perf., i 211 et seg. 
 
 *Pry, Spec. Perf., § 212; Romans v. Langevin, 34 Minn. 312; Hodg^ v. 
 Kowing, supra; Hurley v. Brown, 98 Mass. 545. See post, I 403. 
 
 ' Graham v. Hendren, 5 Munf. 185. 
 
 ' Hissam v. Parish, supra. 
 
 "It is well settled that courts of equity will notwithstanding the statute of 
 frauds enforce oral contracts for the sale of land which have been partially 
 performed; and when the failure to complete the contract would operate as 
 a fraud, such courts may exercise a similar jurisdiction with regard to 
 chattels; but courts of law will not enforce such contracts contrary to the 
 provisions of the statute." Kimmins v. Oldham, 27 W. Va. 259. Binke v. 
 Parke, 5 W. Va. 122. 
 
SPECIFIC PERFORMANCB. 53 ^ 
 
 in -writing and signed by the party to be charged thereby' or 
 his agent. ^ Thus, it is apparent that the general rule requires the 
 contract sought to be specifically enforced to be in writing and 
 signed by the party to be charged or his agent. But courts of 
 equity treat parol contracts for the sale or exchange of real estate, 
 when there has been part performance, as valid and as effectual 
 as those evidenced by the most solemn instruments in writing.' 
 
 This exception rests upon the principle of equitable estoppel 
 that the vendor has so dealt with the purchaser in receiving the 
 whole or a part of the purchase-money, or in contracting for its 
 payment, and in putting him in actual possession of the land in 
 part execution of the contract of sale, that it would be a fraud 
 on the vendor's part to repudiate the contract, and stop short of 
 its execution.' 
 
 In order to prevent the possibibility of fraud, however, in en- 
 grafting this exception upon the statute of frauds, it is settled 
 that the parol agreement relied on must be certain and definite 
 in its terms; the acts proved in part performance must refer to, 
 result from, or be done in pursuance of the agreement; and the 
 agreement must have been so far executed that a refusal of full 
 execution would operate as a fraud upon the party, and place him 
 in a situation which would not allow of adequate relief by way of 
 compensation in damages.* 
 
 We have thus stated the general principles governing courts 
 of equity in the matter of enforcing specific performances of ver- 
 bal or parol contracts for the sale of real estate. There are cer- 
 tain elements or absolute essentials which enter into the doctrine 
 of part performance which must here be considered. In the first 
 place, the plaintiff must establish the contract alleged in his bill 
 
 » Code, chap. 98, sec. i. 
 
 ' Vickers v. Sissons, 10 W. Va. 12; Lydick v. B. & O. R. R. Co., 17 W. Va. 
 427; Pack V. Hansbarger, 27 W. Va. 313; Middleton v. Selby, 19 W. Va. 167; 
 Gallagher v. Gallagher, 31 W. Va. 9; s. c. 5 S. B. Rep. 297; Frame v. Frame, 
 32 W. Va. 463; s. c. 9 S. E. Rep. gor; Miller v. Lorentz, 39 W. Va. 160; s. c. 
 19 S. E. Rep. 391; Floyd v. Harding, 28 Gratt. 406; Wright v. Prickett, 22 
 Gratt. 370; Fishbum v. Ferguson, 85 Va. 321; s. c. 7 S. E. Rep. 361; Rey- 
 nolds V. Necessary, 88 Va. 125; s. c. 13 S. E. Rep. 348. 
 
 3 MUler V. Lorentz, supra. 
 
 ♦Reynolds v. Necessary, supra; Floyd v. Harding, supra; Wright v. 
 Prickett, supra; Gallagher v. Gallagher, supra; Campbell v. Petterman, 20 
 W. Va. 398, 403. 
 
532 EQUITY PRINCIPI<BS. 
 
 by a clear preponderance of the evidence,' which must be clear, 
 full and free from suspicion.' If the evidence is conflicting, and 
 it is not clear that a contract was made, no relief can be granted 
 and the plaintiff's bill will be dismissed.' 
 
 In the next place, the party seeking part performance must 
 have taken possession;* and where the general requisites for a 
 decree for specific performance are shown, possession given and 
 taken in part execution of the verbal contract may of itself en- 
 title the purchaser to have the same enforced; but such posses- 
 sion must be actual and exclusive and be retained and continued 
 under it.'' But when the purchaser moves upon the land and re- 
 mains there in company with the vendor, and not as the osten- 
 sible and exclusive proprietor, such possession, as an act of part 
 performance, will not entitle the purchaser to specific perform- 
 ance.' 
 
 The payment of the purchase-money is not of itself, unaccom- 
 panied by possession, such part performance as will take a verbal 
 contract for the sale of land out of the statute of frauds,^ although 
 the vendor may have become insolvent.* But if possession has 
 been taken by the vendee and the purchase- money or a part 
 thereof paid, it is otherwise.' 
 
 In lyowry v. Buffington,^" it is decided that when there has 
 been a part performance of the contract for the sale of land by 
 the purchaser being put into possession of the property, and pay- 
 ment of the purchase-money, or a part thereof, and an offer to 
 pay the residue according to the contract, and valuable improve- 
 ments have been made on the land by the purchaser on the faith 
 of the contract, the statute of frauds cannot be successfully 
 pleaded in bar to the performance in a court of equity. 
 
 ' Gallagher v. Gallagher, supra; Miller v. Lorentz, supra; Boggs v. Bod- 
 kin, 32 W. Va. 566; s. c. 9 S. E. Rep. 891. 
 
 = Harris v. Elliott, 36 W. Va. 245; s. c. 32 S. E. Rep. 176. 
 
 3 Gallagher v. Gallagher, supra; Miller v. Lorentz, supra. 
 
 * Miller v. Lorentz, supra; Gallagher v. Gallagher, supra.; Frame v. 
 Frame, 32 W. Va. 463; s. c. 9 S. E. Rep. 901; Grigsby v. Osbom, 82 Va. 
 371. 373; Goodwin v. Bartlett, 43 W. Va. 332; s. c. 27 S. E. Rep. 325. 
 
 5 Mliler v. lyorentz, supra; Gallagher v. Gallagher, supra; Woods v. 
 Stephenson, 43 W. Va. 149; s. c. 27 S. E. Rep. 309. 
 
 ' Gallagher v. Gallagher, supra; Tracy v. Tracy, 14 W. Va. 243. 
 
 ' Gallagher v. Gallagher, supra; Miller v. Lorentz, supra. 
 
 ' Miller v. Lorentz; supra. 
 
 » Middleton v. Selbe, 19 W. Va. 167. "> 6 W. Va. 249. 
 
SPECIFIC PBRFORMANCE. 533 
 
 In the case of Middleton v. Selby,^ the court decides that a 
 verbal contract for the sale of land may be enforced in a court of 
 equity where possession has been taken under said contract and 
 the purchase-money or a part thereof has been paid. 
 
 Where the party insisting upon the specific performance relies 
 upon the expenditure of money in making permanent improve- 
 ments as a ground of part performance, he cannot obtain relief if 
 he has been fully compensated by the use of the land or other- 
 wise for the improvement made by him.' 
 
 And if improvements are relied upon as a ground of part per- 
 formance, they must be beneficial to the estate and of a perma- 
 nent character, not mere repairs made to the property or upon 
 the premises.' 
 
 § 399. As to the vendor's title in suits for specific per- 
 formance — 
 Questions regarding the title to land in suits for specific per- 
 formance usually, though not always, arise when the vendor 
 himself is the plaintiff, seeking by suit the payment of the pur- 
 chase-money or a part thereof.* As a general rule, a court of 
 equity will not decree the specific execution of a contract for the 
 sale of land unless the vendor can make a good title thereto,' ex- 
 cept where the vendee himself insists upon the conveyance of 
 such title as the vendor is able to convey.' But it will not with- 
 hold its aid because the vendor may not be able to make title to 
 an insignificant part of the land, of no peculiar value to the 
 vendee, as the court may, in such case, abate the value of such 
 deficiency from the purchase-money.'' And if, at the date of a 
 decree of sale at the suit of the vendor to compel specific per- 
 formance for the payment of the purchase-money, the title, 
 
 • 19 W. Va. 167. " Gallagher v. Gallagher, supra. 3 Idem. 
 
 < Heavener v. Morgan, 30 W. Va. 335; s. c. 4 S. E. Rep. 406; Core v. Wig- 
 ner's Heirs, 32 W. Va. 277; s. c. 9 S. E. Rep. 36; Boggs v. Bodkin, 32 W. 
 Va. 566; s. c. 9 S. E. Rep. 891; Watson v. Coast, 35 W. Va 463; s. c. 14 S. 
 E. Rep. 249; Morgan v. Brast, 34 W. Va. 332; s. c. 12 S. E. Rep. 710; Cady 
 V. Gale, 5 W. Va. 547; Middleton v. Selby, 19 W. Va. 167; Creigh v. Boggs, 
 Idem, 240. 
 
 5 Middleton v. Selby, supra; Boggs v. Bodkin, supra; Waston v. Coast, 
 supra; Sinkons v. Cooper, 2 W. Va. 67. 
 
 ' Cady V. Gale, supra. 
 
 7 Creigh v. Boggs, 19 W. Va. 240; Morgan v. Brast, 34 W. Va. 332; s. c. 
 12 S. E. Rep. 710; Stockton v. Union Oil & Coal Co., 4 W. Va. 273. 
 
534 EQUITY PRINCIPI,BS. 
 
 though originally defective, has become good by reason of the 
 purchaser's possession under the statute of limitations, the court 
 may go on and enforce the contract.' 
 
 So, if a vendor does not affect to have a perfect title, and ex- 
 pressly sells such as he has without special warranty, he is enti- 
 tled to specific execution without being first required to show a 
 clear title. ^ And where a purchaser knows, when he makes his 
 contract, that there is a defect in the title, and that it will take a 
 considerable time to remove it, or acquires this knowledge after 
 his purchase and acquiesces in the delay, or proceeds, with 
 knowledge of the defect, in the execution of the contract, he 
 cannot afterwards complain.' 
 
 Where a vendor files his bill to subject land to the payment of 
 the purchase-money, and the vendee answers and says that sev- 
 eral portions of the land are held by others, naming them, by 
 title paramount, and shows in his answer that the grounds on 
 which such third persons claim portions of said land are such as 
 will put a reasonable man in just apprehension of losing his land, 
 the plaintiff, if he does not concede this, must amend his bill, 
 and set out specifically all the facts within his knowledge with 
 reference to the claim of such third parties; and if he insists his 
 own title is good and the land is his, then he must make such 
 third parties whose claims he disputes defendants to the bill, so 
 that a proper decree may be entered, protecting the rights of all 
 parties interested.* 
 
 § 400. What persons may compel specific performance — 
 With reference to the interest in the contract itself which will 
 enable the party to go into a court of equity and maintain a bill 
 for specigc performance, it is only necessary to say that either of 
 the "parties to it, that is either the vendor or vendee, may main- 
 tain any such bill.' In fact, an examination of the decisions dis- 
 closes that any one who has a legal or equitable interest to pro- 
 mote or protect under the contract, whether originating at the 
 
 ' Core V. Wigner's Heirs, supra. ' Broyles v. Bee, 18 W. Va. 514. 
 
 3 Rader v. Neal, 13 W. Va. 373; Vail v. Nelson, 4 Rand. 478; Goddin v. 
 Vaughn, 14 Gratt. 125; Dodson v. Hays, 29 W. Va. 577; s. c. 2 S. E. Rep. 
 415- 
 
 * Heavener v. Morgan, 30 W. Va. 335, 4 S. E. Rep. 406. 
 
 s Creigh v. Boggs, 19 W. Va. 240. 
 
SPECIFIC PERFORMANCE. 535 
 
 rime of the execution or subsequently thereto may maintain a bill 
 for the specific enforcement thereof.* 
 
 To illustrate: The cestui que trust may bring suit for the 
 specific execution of a contract, made by a third party with the 
 trustee in a deed of trust for the purchase of a tract of land con- 
 veyed by the deed of trust;' so where the father purchases a 
 tract of land in the name of the son and the contract provides 
 that the land shall be conveyed to the son upon the payment of 
 the purchase-money, and the father pays the purchase-money, 
 the son may maintain a suit for specific performance;' so an as- 
 signee of a vendee may bring suit for specific performance.* 
 
 Where it is sought to compel specific performance of the con- 
 tract for the payment of the purchase-money after the death of 
 the vendor, the suit should be in the name of the personal repre- 
 sentative;' but if by the vendee (after his death) to compel 
 specific performance, the suit should be in the name of his 
 heirs.* 
 
 And where there has been such part performance as will take 
 the case out of the statute of frauds, a written contract signed by 
 the vendor alone may be enforced by him against the vendee in 
 a court of equity.' 
 
 § 401. Who should be defendants in suits for specific per- 
 formance — 
 It may be announced upon principle alone, though we cite 
 some adjudications in support of the doctrine, that ^11 parties 
 whose rights may be in any wise affected by the decree to be en- 
 tered in the cause, should be before the court in a suit for spe- 
 cific performance.* Thus, in a suit by the vendee for the specific 
 performance of the contract to convey land, an infant, to whom 
 
 ■ Fleming v. Holt, 12 W. Va. 143; Lorentz v. Lorentz, 14 W. Va. 809; 
 Creigh v. Boggs, 19 W. Va. 240; Grinnan v. Edwards, 21 W. Va. 347; Bier 
 V. Smith, 25 W. Va. 830; Nash v. Jones, 41 W. Va. 769; s. c. 24 S. E. Rep. 
 592; Steinrod v. Railroad Co., 27 W. Va. i. 
 
 ' Fleming v. Holt, supra. ^ I^orentz v. Lorentz, supra. 
 
 < Nash V. Jones, supra. = Steinrod v. Railroad Co., supra. 
 
 ' Bier v. Smith, supra. ' Steinrod v. Railroad Co., 27 W. Va. i. 
 
 • Gentry v. Gentry, 87 Va. 478; s. c. 12 S. E. Rep. 966; Heavner v. Mor- 
 gan, 30 W. Va. 335; s. c. 4 S. E. Rep. 406; Fisher v. Brown, 24 W. Va. 713; 
 Chesman v. Cummings, 142 Mass. 65, 7 N. E. Rep. 13. 
 
536 BQUITY PRINCIPLES. 
 
 part of the purchase-money notes were by direction of the vendor 
 made payable, is a proper party.' 
 
 So if a suit is brought by a vendor to compel payment of the 
 purchase money by the vendee, and it is shown by the latter's 
 answer that certain portions of the land are claimed by third par- 
 ties by title paramount, such third parties must be made defend- 
 ants to the suit, unless the plaintiff therein concedes the claim 
 made by them, so that a proper decree may be entered, protecting 
 the rights of all parties interested.* And so it is laid down by 
 the text writers and by several adjudications, that the original 
 parties to the contract shotild be before the court as parties to the 
 suit, and are so held to be, as a general rule, the only necessary 
 ones.' And that where thes* have died, the actions should be 
 against their heirs and personal representatives.* 
 
 But it seems to us, upon principle as well as upon authority, 
 that the true rule as to the essential parties in a suit for specific 
 performance, are only those whose rights are to be affected by 
 the decree sought to be taken in the case, as we have just stated. 
 Thus, if the original vendor in an executory contract of sale and 
 the holder of the legal title to the land, has parted with all title 
 and interest therein to a third party by another and second con- 
 tract of sale and a conveyance of the legal title, and such second 
 purchaser had notice of the first purchase, and has thus become 
 the sole owner of the legal title, it is certainly not necessary in 
 a suit for specific performance by the first purchaser against the 
 second purchaser, that the vendor be made a party to the suit.* 
 
 In Champion v. Brown,* the court says that "it is well settled 
 that if A enters into a contract to sell land to B, and afterwards 
 
 • Gentry v. Gentry, supra. See Heavner v. Morgan, supra. 
 
 ' Heavner v. Morgan, supra. 
 
 ' Waterman on Specific Perf. Contr., ?§ 64 et seq.; Fry on Specific Perf. 
 Contr. (2d ed.), top page 8r; Campbell v. McPadden, 9 Tex. Civ. App. 379; 
 Manuf'g Co. v. Wire Fence Co., 109 111. 72; Lavender v. Thomas, 18 Ga. 668; 
 I Bart. Ch. Pr. 214. 
 
 ■• Gallatin Land, Coal and Oil Co. v. Davis, 44 W. Va. 109, 28 S. E. Rep. 
 747; Jacobs V. Locke, 2 Ired. (N. C.) Eq. 286; Morgan v. Morgan, 2 Wheat. 
 290; Moore v. Murphy, 40 Ala. 573; Fry on Specific Perf. Contr. (2d ed.) R 
 114 et seq.; i Bart. Ch. Pr. 191. 
 
 s Water Supply Co. v. Root, 56 Iowa, 187; Bornff v. Hudson, 138 Ind. 280, 
 37 N. E. Rep. 786; Town of Bristol v. Bristol and Warren Water Works, 00 
 R. I. 000, 34 Atl. Rep. 359. 
 
 ' 6 John. Ch. 398; 2 N. Y. Ch. R. L. ed., at p. 163. 
 
SPECIFIC PERFORMANCE. 537 
 
 refuses to perform his contract, and sells the land to C for a val- 
 uable consideration, B may, by bill, compel the purchaser to con- 
 vey to him, provided he be chargeable with notice, at the time 
 of his purchase, of B's equitable title under the agreement. 
 . . . The rule that affects the purchaser is just as plain as 
 
 that which would entitle the vendee to a specific performance 
 against the vendor. If he be a purchaser with notice, he is 
 liable to the same equity, stands in his place, and is bound to do 
 that which the person he represents would be bound to do by 
 the decree. The purchaser from the vendor takes the estate 
 subject to the charge, and so, I apprehend, does a purchaser 
 from the vendee, and he is equally responsible in respect to the 
 estate. The vendor cannot make him personally liable for the 
 purchase-money, but the estate is liable; and if he be a purchaser 
 with notice, it is the same thing whether the estate had or had 
 not been actually conveyed by the vendor." Furthermore, if the 
 contract is binding, it may be specifically enforced against any 
 one in whom is vested the beneficial and legal interest in the 
 property.' 
 
 § 402. W^hat a sufficient signing of the contract under 
 the statute of frauds — 
 
 A person owning lands may authorize another to make a con- 
 tract for the sale thereof; and if a contract be made under such 
 authority, the owner of the lands may be charged by virtue of 
 the contract, provided there is a memorandum thereof in writing 
 signed by the person authorized to make it.^ The signing by the 
 agent of his own name as the agent is suflBcient. The statute 
 does not make it indispensable that he should sign the name of 
 the party to be charged therewith.' 
 
 In Hale v. Hale,* the supreme court of appeals of Virginia, in 
 construing the statute from which ours was taken, says: The 
 "memorandum in writing called for by the statute of frauds 
 must be such as can be understood without recourse to parol 
 proof, and this requirement is not met when the only memoran- 
 dum is one of two reciprocal wills, neither of which alludes to 
 the other, or refers to any other writing." 
 
 " Waterman, Spec. Perf., g 75. 
 
 ' Conaway v. Sweeney, 24 W. Va. 643. 3 Idem. 
 
 < 90 Va. 728, 19 S. E. Rep. 739. 
 
538 EQUITY PRINCIPLES. 
 
 The authority of the agent to make a parol contract, whether 
 oral or written, need not be in writing; so that a contract for the 
 sale of lands may be made by the agent though his authority 
 was conferred verbally.' 
 
 § 403. As to the use of parol evidence to explain the con- 
 tract for the sale of real estate — 
 
 Every agreement required by the statute of frauds to be in 
 writing must be certain in itself or capable of being made so by 
 reference to something else, whereby the terms can be ascer- 
 tained with reasonable certainty. And in contracts for the sale 
 of lands, the court may go outside of the writing for the purpose 
 of identifying and ascertaining the land sold, where general 
 words of description capable of being made certain are used in 
 the writing.* 
 
 Parol evidence, in the absence of fraud or mistake, will not be 
 received to engraft upon or incorporate with a valid contract an 
 incident occurring contemporaneously therewith and inconsistent 
 with its terms. This rule applies in every case where the ques- 
 tion is, what is the agreement. But collateral circumstances at- 
 tending the agreement, and mistake or fraud in the procurement 
 or execution of the agreement, may be proved by parol evi- 
 dence.' 
 
 In Matthews v. Jarrett,* our supreme court, in speaking of the 
 use of extrinsic evidence in the enforcement of contracts for the 
 sale of real estate, says that, "it cannot be used to supply any 
 defect or omission in the terms of the written contract; but it is 
 strictly confined, in cases where no fraud, mistake or other equi- 
 table incident of a like character is alleged, to the function of 
 explanation, and of exhibiting the surrounding circumstances in 
 the manner and only to the same extent that such evidence is 
 
 » Campbell v. Fetterman, 20 W. Va. 398; Kennedy v. Ehlen, 31 W. Va. 
 540; !i. c. 8 S. E. Rep. 398. 
 
 The West Virginia statute of frauds requires the memorandum of the pur- 
 chase of lands to be in -writing, and signed by tlie agent, to be binding. 
 But it does not require the agent to have been authorized in writing to sign 
 such contract of purchase, and he may be authorized verbally to make such 
 contract, while by the English statute of frauds the agent must be thereunto 
 lawfully authorized in writing. Kennedy v. Ehlen, supra. 
 
 ' White v. Core, 20 W. Va. 272; Findley v. Armstrong, 23 W. Va. 113. 
 
 3 Campbell v. Fetterman, 20 W. Va. 393. « 20 W. Va. 415. 
 
SPECIFIC PERFORMANCa. 539 
 
 permissible in the interpretation of all other written instru- 
 ments. ' ' 
 
 And parol evidence may be resorted to for the purpose of cor- 
 recting a mistake made in reducing the contract to writing.* 
 
 § 404. As to the enforcement of options for the purchase 
 of real estate — 
 
 An option is a unilateral contract embodying a mere proposal 
 to sell certain property therein designated for a specific price 
 therein mentioned to some one or more parties, and in which the 
 time for consummating the contract by the acceptance of its pro- 
 posed terms is ordinarily limited to that period.' 
 
 The first case arising in our state in which the courts were 
 called upon to define the rights of parties with reference to this 
 class of contracts and apply the law relative thereto, is that of 
 Weaver v. Burr.' 
 
 In this case Judge Snyder dissented and contended for a dis- 
 tinction between an "option" to purchase and an "offer" of 
 sale, insisting that the latter is a "mere proposal without any 
 limitation as to time' ' and must be accepted at the earliest practi- 
 cable moment, while the former is "a contract by which one 
 party agrees to do some specific act upon the assent or acceptance 
 of the other party within a fixed time." In this dissenting 
 opinion the learned judge sought to show that the "option" con- 
 stitutes an open and binding contract upon the proposer until the 
 expiration of the time fixed for its acceptance, whether the other 
 party does anything on his part or not, looking to the acceptance 
 or consummating of the proposed offer of sale. 
 
 But the court in its opinion in this case which has been fol- 
 lowed by all subsequent decisions, speaking as to this feature of 
 an option or offer of sale, says: "Whatever contrariety of 
 judicial opinion may have heretofore existed in regard to such 
 agreements or offers to sell land or other property, giving to the 
 
 ' Fishback v. Ball, 34 W. Va. 644; s. c. rz S. E. Rep. 856. 
 
 » Weaver v. Burr, 31 W. Va. 736; s. c. 8 S. E. Rep. 743; Barrett v. McAl- 
 lister, 33 W. Va. 738; s. c. II S. E. Rep. 220; Watson v. Coast, 35 W. Va. 
 463; s. c. 14 S. E. Rep. 249; Clark v. Gordon, 35 W. Va. 255; s. c. 14 S. E. 
 Rep. 255; Dyer v. Duffy; 39 W. Va. 148; s. c. 19 S. E. Rep. 540. 
 
 There will be found an elaborate and valuable note relating to the subject 
 of options appended to the case of Litz v. Goosling, reported in 21 L. R. A. 
 127. 
 
 3 31 W. Va. 736; 8 S. E. Rep. 743, decided in December, i888. 
 
540 EQUITY PRINCIPLES. 
 
 prospective purcliaser a limited time -within whicli he may pur- 
 chase upon the terms prescribed, it is now well settled that 
 where the promise on the part of the proposer to continue the 
 offer of sale for a specified time is made without consideration, it 
 is nudum pactum, and may be withdrawn at any time, provided 
 such retraction be communicated to the other party before he has 
 accepted the same; for, until the proposal is accepted, there can 
 be no contract, as there is nothing by which the proposer can be 
 bound, and, unless both are bound so that an action could be 
 maintained against the other for a breach, neither will be bound.' 
 
 So in order to convert a mere proposal to sell or a naked 
 option into a valid contract of sale, it is essential that it be uncon- 
 ditionally accepted, and that notice of such acceptance be com- 
 municated to him who makes the offer within the time limited, 
 or that within that time some act be done by the acceptor which 
 the proposer has expressly or impliedly agreed to treat as notice 
 of such acceptance.' 
 
 If to the acceptance of such proposal a condition be affixed by 
 the party to whom the offer is made, or any modification or 
 change be made or requested, this will constitute, in contempla- 
 tion of law, a rejection of such offer.' The acceptance must be 
 made at all hazards within the time named in the option, and if 
 none be named, then within a reasonable time, as the time fixed 
 for the acceptance of an option or mere offer of sale is of the 
 the essence of the contract.* 
 
 Where the proposal requires acceptance by wire or otherwise, 
 the sending of a telegram of acceptance to the proposer by the 
 other party, or a personal verbal acceptance, is acceptance.' 
 
 Where payment is not in such proposal made an act of accept- 
 ance, or required to be made within the time fixed for accept- 
 ance, payment or tender within the time is not essential to the 
 formation of a contract, but only an element in the performance 
 of it.' If an option does not otherwise provide, payment in cash 
 is to be made simultaneously with transfer of title. The obliga- 
 tion to make payment and the obligation to make title are mutual 
 
 • See opinion of Woods, J., at p. 46 of 8 S. E. Rep.; and at p. 742 of 31 
 W. Va. 
 
 » Weaver v. Burr, supra; Barrett v. McAllister, supra; Dyer v. Duffy^ 
 supra. 
 
 3 Weaver v. Burr, supra. « Dyer v. Duffy, supra. 
 
 5 Watson V. Coast, supra. « Idem. 
 
SPECIFIC PERFORMANCE. 541 
 
 and dependent, and neither can be demanded until the other is 
 ready to be performed." 
 
 Ordinarily time of payment is not of the essence of an execu- 
 tory contract for the sale of land; not more so under a contract 
 so formed under a proposal than in other executory contracts. 
 The injury from delay is adequately compensated by interest on 
 the purchase-money.^ 
 
 A purchaser entitled to good title need not pay purchase- 
 money until he gets good title. If he decline to receive a deed 
 and pay purchase-money alleging defect of title, on grounds 
 plausible enough to cause a prudent man to hesitate, though 
 turning out to constitute no defect, this will not defeat his right 
 to specific performance.' 
 
 While, as a general rule, one of the principles underlying the 
 doctrine of specific performance of contracts is that of mutuality,* 
 it does not apply to options. The purchaser of an option to buy 
 or sell land pays for the privilege of his election. It is that very 
 privilege which the other party to the contract sells. In the 
 absence of an agreement to the contrary, each party to a con- 
 tract to buy or sell land may have it specifically enforced against 
 the other.* But the very purpose of an optional contract of this 
 nature is to extinguish this mutuality of right, and vest in one 
 of the parties the privilege of determining whether the contract 
 shall be vitalized and enforced." An option to buy or sell land, 
 more than any other form of contract, contemplates a specific 
 performance of its terms; and it is the right to have them spe- 
 cifically enforced, that imparts to them their usefulness and 
 value. An option to buy or sell a town lot or other real estate 
 may be valuable when the party can have the contract specifically 
 enforced, but if he can not do this, and must resort to an action 
 at law for damages, his option in most cases will be of little or 
 no value.' No man of any experience in the law would esteem 
 an option on a lawsuit for an uncertain measure of damages as of 
 any value. The modem and we think the sound doctrine is that 
 when such contracts are free from fraud, and are made upon a 
 
 " Idem. ' Idem. 3 Idem. 
 
 ' Fry, Spec. Perf. (2d. ed.) 198-207 and authorities cited. 
 
 5 Raymond v. San Gabriel Land and Water Co., 4 C. C. A. 89. 
 
 « Watts V. Kellar, 5 C. C. A. (U. S.) 397- ^Idem. 
 
542 EQUITY PRINCIPLES. 
 
 sufficient consideration, they impose upon the maker an obliga- 
 tion to perform them specifically, which equity will enforce.^ 
 
 § 405. 'What contracts will be specifically enforced, to- 
 gether with some illustrative instances of spe- 
 cific performance — 
 
 Where a vendor, by executory contract, has conveyed the legal 
 title to a subsequent purchaser for value, without notice, there 
 cannot be specific performance of the executory contract in favor 
 of the first purchaser, but if the second purchaser had notice, 
 there can be, the conveyance to him being void as to the first 
 purchaser, and he can be compelled to convey the land, without 
 warranty, to the first purchaser.'' Where the land is subject 
 to a life maintenance in favor of a third party, this is no impedi- 
 ment to a specific performance of a contract of sale with general 
 warranty, if the purchaser will accept a conveyance with such 
 warranty, and rely upon it for indemnity against such incum- 
 brance.' 
 
 As a general rule, equity will not enforce specific performance 
 of contracts for the delivery of shares of stock; but will do so 
 where the stock has a unique and special value, the loss whereof 
 cannot be adequately compensated in damages.* Where there is 
 no unfairness in the sale of land by private parties, specific per- 
 formance will not be denied for inadequacy of price alone, unless 
 it be so grossly inadequate as to justify the presumption of fraud 
 
 • "Watts V. Kellar, supra; Willard v. Taylor, 8 Wall. 557; Brown v. Slee, 
 103 U. S. 828. In the case last cited the supreme court of the United States 
 enforced, quite as a matter of course, the specific performance of a seller's 
 option, -whicli was in these terms: 
 
 "It is further understood and agreed that if said executors desire it said 
 Brown shall, at the expiration of five years, stated in said contract of April 
 25, 1871, repurchase the 130 acres of land in the City of Des Moines at 
 125,000." 
 
 The opinion of the court was delivered by Chief Justice Waite, and dis- 
 cusses at length the sufficiency of the executor's notice of their election to 
 sell, and the question whether the deed was timely; but contains no intima- 
 tion that the want of mutuality in the contract was any impediment to the 
 specific performance. The want of mutuality was too obvious to be over- 
 looked, and the fact that it was not adverted to shows that in the judgment 
 of that court the right to enforce the specific performance of such a con- 
 tract was too well settled to require or justify any observation. 
 
 » Bates V. Swiger, 40 W. Va. 420; s. c. 21 S. E. Rep. 874. ' Idem, 
 
 4 Bumgardner v. I^eavitt, 35 W. Va. 194; s. c. 13 S. E. Rep. 67. 
 
SPECIFIC PERFORMANCB. 543 
 
 and collusion, and to justify this presumption the inadequacy 
 must be so gross as to shock the conscience and confound the 
 judgment. Half the estimated value of the land is not such in- 
 adequacy.^ Where the remedy at law would be incomplete and 
 inadequate because the court at law could not give a conditional 
 or modified judgment, and would be unable to preserve the bene- 
 fit of the agreement to all the parties interested, equity has juris- 
 diction to enforce the agreement.' 
 
 In the following cases specific performance was decreed: The 
 following agreement, bearing date March 12, 1856, is entered 
 into: 
 
 "We hereby agree to sell and convey to Milton Parker our in- 
 terest in a tract of land patented to John Steele, of 27,000 acres, 
 and a tract of land lying on the waters Pocotalico, and running 
 to Elk river, for seventy-five cents per acre, one-third of the 
 purchase-money to be paid in good acceptances not to run more 
 than three months, and residue of said purchase-money to be 
 paid in equal installments of one, two and three years, with in- 
 terest from date of deed, but it is understood and agreed that the 
 said Parker is to have till the first day of July, 1856, to elect 
 whether he will take either or both tracts of said land upon the 
 terms and conditions aforesaid, and it is understood and agreed that 
 the said Parker may elect either of said tracts of land, but is not 
 compelled to take both, but shotild he elect to take neither, then 
 this contract is null and void; but should said Parker elect to 
 take said tracts or either of them, he binds himself to pay for 
 said land at the rate of seventy-five cents per acre for land so 
 elected to be taken by him in the manner aforesaid. 
 ' 'Witness our hands and seals, date and day as above. 
 
 "M. Parker, [seal.] 
 
 "Wm. Donnali^y, [seal.] 
 "A. F. Donnally. [seai,.]" 
 
 It is acknowledged and entered of record in the proper office 
 on the 17th of the same month. P. gave notice of his elec- 
 tion to take the Steele tract before the expiration of 'the time al- 
 lowed for the purpose, and notified the D.'s of that fact. Held: 
 It was an executory contract, which became complete between 
 
 ' Conaway v. Sweeney, 24 W. Va. 643. 
 
 " Bumgardner v. I/cavitt, 35 W. Va. 194; s. c. 13 S. E. Rep. 67. 
 
544 EQUITY PRINCIPI<BS. 
 
 the parties on the notice of P., and might have been specifically 
 executed in a court of equity.^ 
 
 A. signs the following contract in writing: "Received, Par- 
 kersburg, March 7, 1870, of S. B. Bentley, two hundred dollars, 
 for which I am to make him a deed for a certain tract of land in 
 Lubeck township, containing one hundred and thirty-seven acres, 
 which I purchased for taxes in the name of Thomas Shriens." 
 B. subsequently requests A. , by a note in writing, to make the 
 deed for said land to C. ; A. not complying with the request, B. 
 sues for a specific performance of the contract, and that a deed 
 for said land be made to himself, on tendering to A. the amount 
 of the purchase-money due thereon. A decree is made for the 
 specific performance of the contract, and that a deed be made to 
 B. for the land. Held: There is no error in said decree.' 
 
 Where J. and M. are the owners of a lot of land, J. owning, 
 two-thirds and M. one-third thereof, and they sell the same to 
 D., and execute to him a title bond therefor, he pa5ang one- third 
 of the purchase-money and executing his notes for the residue, 
 and J. subsequently repurchases said lot from D., and takes an 
 assignment of the title bond, and pays M. his portion of the 
 purchase-money by giving him credit for the amount of his in- 
 debtedness to J., and J. sells said lot to a third party, who pays 
 him the purchase-money, said third party, on the payment of said 
 purchase-money, acquires the rights and equities of D. , and has 
 a right to the specific execution of his contract by obtaining a 
 deed from M. and J.' 
 
 Defendant's ancestor, a feeble, childless, widower, sixty-six 
 years old, but wealthy, requested complainants, his niece and her 
 husband, whom he knew well, the former having been reared in 
 his family, to give up their home and occupy his, and care for 
 him until his death; promising orally to convey to them the 
 premises in return for their care. They did so and he conveyed 
 according to promise, but the deed was vacated after his death, 
 at the suit of his heirs, for mental incapacity. The property was 
 but a small portion of his estate, and he was mentally sound 
 when the agreement was made. Complainants made valuable 
 improvements on the land. Held, that defendants should be re- 
 
 ' Donnally v. Parker, 5 W. Va. 301. 
 
 ' Bentley v. McKibben, 6 W. Va. 283. 
 
 3 Nash V, Jones, 41 W. Va. 769, 24 S. E. Rep. 592, 
 
SPECIFIC PERFORMANCE. 545 
 
 quired to specifically execute the contract of their ancestor by 
 conveying the premises.^ 
 
 Plaintiff made an oral agreement to sell and immediately de- 
 deliver certain land to defendant for a fixed sum, in consideration 
 of his taking up and delivering two notes which were a lien upon 
 said lands, and paying the balance at stated times. Defendant 
 bought the notes, and delivered one, and offered to perform the 
 remaining conditions of the contract, and went into possession, 
 and cut logs from the land. Plaintiff refused to further perform 
 the contract, obtained an injunction, and sought to recover the 
 logs, still, however, retaining the note. Held, that specific per- 
 formance of the contract will be decreed.^ 
 
 § 406. What contracts will not be specifically enforced, 
 together Avith some further illustrative instances 
 as to specific performance — 
 
 Specific performance will not be decreed of a cotnract made by 
 the committee of an insane person, unless such contract be 
 beneficial to such insane person' s estate;' nor of a contract in which 
 the defendant binds himself in a penal sum for the performance 
 of certain work, and the plaintiff binds himself to pay for such 
 work when completed, as a breach of the contract may be com- 
 pensated in damages;* nor of an executory contract, against the 
 heirs of a party, who, when he made it, was of unsound mind.^ 
 
 Specific performance being addressed to the sound discretion 
 of the court, the party asking it must have been ready, wilUng 
 and prompt in the performance of those things incumbent on him, 
 and where he has not been so, and it would impose hardship and 
 be inequitable upon the other party, specific performance will 
 be refused.' Nor will equity compel specific performance of a 
 contract to build a railroad;' nor of an agreement to sell and con- 
 vey ordinarily against the vendor, a married man, whose wife 
 will not join in the deed, when there is no proof of fraud on his 
 
 ' Fishburne v. Ferguson, 85 Va. 321; s. c. 7 S. E. Rep. 361. 
 
 = Reynolds v. Necessary, 88 V. 125, 13 S. E. Rep. 348. 
 
 3 Hinchman v. Ballard, 7 W. Va. 152. 
 
 < McArter v. Armstrong, 32 S. C. 203; s. c. 10 S. E. Rep, 953. 
 
 5 Gapen v. Gapen, 41 W. Va. 422; s. c. 23 S. E. Rep. 579. 
 
 « Dyer v. Duffy, 39 W. Va. 148; s. c. 19 S. E. Rep. 540. 
 
 1 Ewing V. Litchfield, 91 Va. 575; s. c. 22 S. E. Rep. 362. 
 
 35 
 
546 EQUITY PRINCIPLES. " 
 
 part in her refusal, unless the purchaser is willing to pay the full 
 purchase-money, and accept the deed without her joining.* 
 
 In the following cases the court declined to decree specific per- 
 formance: 
 
 E. agreed with I<. to construct or procure the construction of 
 a railroad into coal fields of the V. & T. Co. , in which company I,, 
 was a large stockholder, and L. agreed to procure for E. the control- 
 ling interest in the stock of said company at certain rates. Upon 
 the failure of E. to perform his part, I<. was to receive of him 
 $50,000 of the stock of said company, or $5,000 in money in lieu 
 thereof, by way of ascertained and liquidated damages. Hdd, 
 that a bill in equity by !<. to enforce the assignment of said 
 $50,000 of stock, on E.'s failure to carry out his agreement, was 
 demurrable, as being in effect a bill to enforce payment of liqui- 
 dated damages or a penalty.' 
 
 After negotiations for the sale and purchase of a lot had been 
 continued for some time by letter, the purchaser made an offer 
 for a lot of certain dimensions, to which the owner answered by 
 offering to accept the price for a lot of smaller size, provided 
 they could agree on other points. The purchaser then wrote that 
 he accepted the proposition on the terms and conditions stated in 
 a former letter, and requested that a deed be executed and sent 
 to him. When the deed was received it contained conditions to 
 which the purchaser refused to accede. Held, that the letters 
 did not constitute a contract which the purchaser could specifi- 
 cally enforce.' 
 
 Plaintiff agreed to buy and defendant to sell a certain lot and 
 afterwards they agreed that the lot and another should be sold 
 by defendant to plaintiff's son at a different price with the right 
 to a reconveyance to defendant of the second lot within a given 
 time. Held, that the first contract was waived and specific per- 
 formance could not be decreed.* 
 
 Complainant, the owner of an ore bank, having an arrangement 
 to deliver ore to a railroad company at a certain price per ton 
 entered into an agreement under seal with the defendant, which 
 recited that plaintiff leased to defendant the ore bank on con- 
 
 • Graybai v. Braugh, 89 Va. 895; s. c. 17 S. B. Rep. 558, and especically 
 560 and the authorities there cited. 
 " Ewing V. Litchfield, 91 Va. 575; s. c. 22 S. B. Rep. 362. 
 3 Virginia Hot Springs Co. v. Harrison, 93 Va. 569; s. c. 25 S. E. Rep/SSa 
 •• Ford V. Enter, 86 Va. 75; s. c. 9 S. E. Rep. 500. 
 
SPECIFIC PERFORMANCB. 547 
 
 dition that defendant mine, prepare and deliver to the com- 
 pany a certain quantity of ore per week, and for each ton so 
 delivered, as shown by the company's receipt, complainant and 
 defendant were each to receive from the company a certain pro- 
 portion of the price. The complaint alleged that 'defendant 
 had failed to deliver the required amount to the company, and 
 abandoned the mine and refused to perform his covenants, and 
 prayed that the defendant be compelled to specifically perform 
 the agreement of lease, and to pay over all sums due, and to be- 
 come due, under the lease to complainant, and upon failure so to 
 do that he be ordered to pay complainant a sum sufficient to 
 compensate him for all damages sustained, or to be sustained, 
 by reason of defendant's failure to perform the agreement. 
 Held, that, as the agreement was not a lease of realty, but a con- 
 tract for personal acts and services involving labor, skill and 
 judgment, for the breach of which the remedy at law was ade- 
 quate and ample, equity had no jurisdiction.^ 
 
 A parol contract to sell and convey "forty acres off the Spring 
 Fork end of my tract of one hundred and forty-seven acres on 
 Beach Fork in Calhoun county," is too vague and indefinite to be 
 specifically enforced.' 
 
 § 407. As to specific performance of contracts against 
 married women — 
 
 In our state prior to the enactment and amendment of the Mar- 
 ried Woman's Law by the legislature in 1893,' and when there 
 was no such provision of law in force as to the remedy against 
 married women as the one contained in section fifteen of the 
 enactment cited in the foot-note, specific performance of a con- 
 tract for the sale of real estate would not be decreed against a 
 married woman by a court of equity.* 
 
 When the decisions cited in the foot-notes were rendered, a mar- 
 ried woman could not dispose of her separate real estate without 
 a privy examination, nor could the corpus thereof be taken ex- 
 cept in the enforcement of a voluntary lien. The former requi- 
 site to pass title has been dispensed with by the act of the legis- 
 
 ' Campbell v. Rust, 85 Va. 863; s. c. 8 S..E. Rep. 664. 
 = Westfall V. Cattrills, 24 W. Va. 763. 
 
 3 Acts of 1893, chap. 3, pp. 6-9- 
 
 4 Moore v. Ligon, 30 W. Va. 146; s. c. 3 S. E.^ Rep. 572; Moore v. Ligon, 
 22 W. Va. 292. 
 
548 EQUITY PRINCIPLES. 
 
 lature of 1891,^ and the corpus of her real estate may now be 
 taken and transferred from her the same as if she were a feme 
 sole.* 
 
 But notwithstanding these recent enactments removing obsta- 
 cles in the way of freedom of contract as to a married woman, 
 there is still a law in the statute books, forbidding the sale or con- 
 veyance of her separate real estate, unless her husband join in the 
 deed or other writing by which the same is sold or conveyed, 
 except in the instances where she is living separate and apart 
 from her husband.' 
 
 In Virginia, where she may incumber or dispose of her sepa- 
 rate estate without the joinder of her husband, her contract for 
 the sale of her separate real estate will be specifically enforced by 
 a court of equity as if she were 2. feme sole} 
 
 Our conclusion, from an examination of the law and the deci- 
 sions thereon, is, that the contract of a married woman will not 
 be enforced specifically, unless she be living separate and apart 
 from her husband at the time of its execution and enforcement. 
 
 § 408. As to the allegations of the bill in a suit for specific 
 performance — 
 
 Of course the bill must set out the contract of which specific 
 performance is desired.^ But where the contract proved varies 
 from that set up in the bill, and the contract proved is clear and 
 certain in its terms, and is such as a court of equity might prop- 
 erly enforce, and the court below decrees a specific execution of 
 the contract set out in the bill, the decree must be reversed; but 
 the appellate court will not dismiss the bill, but will remand the 
 cause to the court below, to put the plaintiff to his election, 
 whether to have a specific performance of the contract as proven 
 or to have the same rescinded, and the parties put in statu quo* 
 
 The bill should state that the plaintiff is ready, desirous, 
 prompt and eager to perform the contract on his part.^ 
 
 The bill ought to aver the plaintiff's ability or willingness to 
 
 ' Code, 1891, chap. 73, sec. 4. 
 
 » Acts, 1893, chap. 3, sec. 15. 3 Acts, 1893, chap. 3, sec. 3, p. 6. 
 
 « Gentry v. Gentry, 87 Va. 478; s. c. rz S. E. Rep. 966. 
 s Baldenberg V. Warden, i4W."Va. 397. 
 
 « Baldenberg v. Warden, 14 W. Va. 397; 'Patrick and Lowell v. Horton, 3 
 W. Va. 23; W. Va. O. & O. L. Co. v. Vinal, 14 W. Va. 637. 
 ' Clay V. Deskins, 36 W. Va. 350; s. c. 15 S. E. Rep. 85. 
 
SPECIFIC PERFORMANCE. 549 
 
 pay at once or promptly the purchase-money due on the contract 
 ■when the suit is by the vendee.^ But, ordinarily, it is not essen- 
 tial that the plaintiff, in a suit for the specfic execution of a con- 
 tract for the sale of land, should tender with his bill a deed to 
 the defendant for the land, even when the execution of the deed 
 aud the payment of the purchase-money are dependent cov- 
 enants.' 
 
 Under a prayer for general relief, a plaintiff is entitled to a de- 
 cree for specific performance of the stipulations in the deed, al- 
 though not prayed for specifically.' 
 
 To justify the court in sustaining a demurrer to a bill for a 
 specific performance filed by a vendor, the ground of the demurrer 
 must be a short point, upon which it is dear that the bill would 
 be dismissed with costs at the hearing; if the evidence to be taken 
 might sustain the relief asked with some modification, the de- 
 murrer ought to be overruled, and the case stand to the hearing 
 to be disposed of on its merits.* 
 
 § 409. As to the defense to suits for specific performance — 
 It must not be thought that all the defenses to suits for specific 
 performance can be given here; but only some of the more com- 
 mon and usual ones. It is hardly necessary to state that mis- 
 representation and fraud attending the making or procurement 
 of the contract is a good defense to suits of this character.' The 
 plaintiff, too, may waive his right to specific performance by his 
 own acts or conduct;' as where a vendor of land declines for over 
 a year, without sufficient reason, to carry out his contract, he 
 caimot, at the end of that time, after prices have fallen, ask for 
 specific performance.' 
 
 So, if it appear that plaintiffs have not performed or are not able 
 to perform their part of the contract, equity will not grant relief.* 
 Defense to suits for specific performance may be made on the ground 
 
 • Clay V. Deskins, supra. 
 
 » Vaught V. Cain, 31 W. Va. 424; s. c. 7 S. E. Rep. 9. 
 
 3 Shenandoah Val. R. Co. v. Dunlop, 86 Va. 346; s. c. 10 S. E. Rep. 239. 
 
 * Tavenner v. Barrett, 21 W. Va. 656; For form of bill, see Vickers v. 
 Sisson, 10 W. Va. 12, 15, 16. 
 
 5 Grizzle v. Sutherland, 88 Va. 584; s. c. 14 S. E. Rep. 332; Ratliff v. Van- 
 dikes, 89 Va. 307; s. c. 15 S. E. Rep. 864. 
 « Ford V. Euker, 86 Va. 75; s. c. 9 S. E. Rep. 500. 
 7 Risen V. Newberry, 90 Va. 530; s. c, 18 S. E. Rep. 916. 
 « Henking v. Anderson, 34 W. Va. 709; s. c. 12 S. E. Rep. 869. 
 
550 EQUITY PRINCIPI,ES. 
 
 of laches, or unwarranted delay in the assertion of the claim to 
 specific rehef.' But, where the delay consists merely in the fail- 
 ure to pay purchase- money at the time specified in the contract, 
 equity will not for that cause alone refuse specific performance, 
 unless by its terms the time of the payment of the purchase- 
 money is of the essence of the contract.^ But it is no defense to 
 an action for specific performance of a contract to convey land 
 that the sale was made to prevent the vendor's creditors from 
 collecting a debt.' 
 
 § 410. The decree in suits for specific performance — 
 
 When the court grants specific relief on a bill for that purpose, 
 the decree should provide for the carrying out of the entire con- 
 tract as made by the parties.* A personal decree may be rendered 
 for specific performance against a foreign corporation upon which 
 actual service has been had within the state under the provisions 
 of our statute.' 
 
 As auxiliary to its authority to decree such specific perform- 
 ance, a court of equity may award damages for a breach of the 
 contract, to be assessed either by an issue of quantum damnificatus, 
 or by a master, at its discretion.' 
 
 Equity follows the law, and, as a general rule, where the court 
 of chancery is adjusting the mutual rights between the occupier 
 of land, who has made improvements under the belief that he 
 had a just claim, and the real owner of the land, it will adopt 
 the rule which the Code prescribes in actions of ejectment, and 
 will estimate against the occupant the annual value of such part 
 of the premises, if any, as was improved and in a state fit and 
 prepared for cultivation at the time he took possession thereof, 
 and will credit him with the value of all improvements made 
 thereon; but will not charge him for the use of any improve- 
 
 » Darling v. Cmnming, 92 Va. 521; s. c. 22 S. E. Rep. 880; Powell v. Berry, 
 91 Va. 568; s. c. 22 S. E. Rep. 365; Frame v. Frame, 32 W. Va. 463; s. c. 9 
 S. E. Rep. 901. 
 
 ' Ballard v. Ballard, 25 W. Va. 470; Abbott v. L'Hommedieu, 10 W. Va. 
 677. 
 
 5 Gentry v. Gentry, 87 Va. 278; s. c. 12 S. E. Rep. 966; Welfley v. Shenon-, 
 doah Iron X,. M. & M. Co., 83 Va. 768; s. c. 3 S. E. Rep. 376. 
 
 < Rison V. Newberry, 90 Va. 530; s. c.i8 S. E. Rep. 916. 
 
 5 Shafer v. O'Brien, 31 W. Va. 601; s. c. 8 S. E. Rep. 298. 
 
 ' Grubb V. Starkey, 90 Va. 831; s. c. 20 S. E. Rep. 784. 
 
SPECIFIC PERFORMANCB. 551 
 
 ments made upon the land by him, or for the use of any part 
 of the land cleared by him.^ 
 
 Where the paramount object of a bill for specific performance 
 is to secure the repayment of money loaned for the purchase of 
 land, which defendant has agreed to pay in annual installments 
 and specific performance, which is only sought as a means to the 
 end, has been rendered practically useless by the expiration of 
 the entire time for payment, the court may, under a prayer for 
 general relief, execute the agreement by making the debt a 
 charge on the land, and ordering the land sold if the debt be not 
 paid by a given time.' 
 
 As to interest, the general rule in ordinary contracts for the 
 sale of land, which contain no stipulation for interest and do 
 not specify any day for completion, is that the purchaser is 
 liable for interest on the purchase-money from the time he takes 
 possession, especially if he has received rents and profits.' 
 
 ' Fishback v. Ball, 34 W. Va. 644; s. c. 12 S. E. Rep. 856. 
 = Matthias v. Warrington, 89 Va. 533; s. c. 16 S. E. Rep. 662. 
 3 Steinrod V Railroad Co,, 27 W. Va. i. 
 
552 EQUITY PRINCIPI,KS. 
 
 CHAPTER XXXVIII. 
 
 SUBROGATION. 
 
 5 411. The origin and purpose of subrogation. 
 
 412. Who entitled to subrogation, and some of the principles governing 
 
 the right thereto. 
 
 413. Subrogation where purchaser of real estate, or other person, dis. 
 
 charges incumbrances thereon. 
 
 414. Subrogation of legatees and devisees. 
 
 415. Subrogation with respect to insurance companies. 
 
 416. Subrogation as to indorsers of commercial paper. 
 416a. As to subrogation among joint debtors. 
 
 417. Who are not entitled to subrogation. 
 
 §411. The origin and purpose of subrogation — 
 
 The doctrine of subrogation is derived from the civil law,' and 
 the definitions there given have in the main been followed by 
 our courts.^ It is the creature of a court of equity, independ- 
 ent of any contractual relations between the parties to be affected 
 by it,' has nothing of form or technicality about it,* is eminently 
 calculated to do exact justice between persons who are bound 
 for the performance of the same duty or obligation, and is a doc- 
 trine which is much encouraged and protected.^ 
 
 The law of subrogation will be applied wherever the person 
 claiming its benefits has been compelled to pay the debt of a 
 third party in order to protect his own rights or save his own 
 property.' It is defined to be "the substitution of one who, 
 under the compulsion of necessity or for the protection of his 
 own interests, has discharged a debt for which another is pri- 
 marily liable, in the place of the creditor, with all the security, 
 benefits and advantages held by the latter with respect to the 
 debt." ' 
 
 ' McNeil V. Miller, 29 W. Va. 480, 2 S. E. Rep. 335, 337. 
 
 " Sheld. Subr., ? 2. 3 McNeil v. Miller, supra. 
 
 * Hawker v. Moore, 40 W. Va. 49, 20 S. E. Rep. 49. 
 
 5 Hawker v. Moore, supra. 
 
 ' McNeil V. Miller, supra; McClaskey v. O'Brien, 16 W. Va. 791. 
 
 ' 2 Beach, Mod. Eq. Jur., § 798. 
 
SUBROGATION. 553 
 
 The debt is kept alive for the purpose of securing to the party 
 paying it under compulsion, the position in all respects of the 
 creditor, so as to thus ultimately require payment of him who is 
 primarily bound for payment.^ 
 
 § 412, Who entitled to subrogation, and some of the 
 principles governing the right thereto — 
 
 In the first place, the subject-matter of subrogation must con- 
 sist in a debt or liability in the strict sense of the term,' and 
 there must be a full and complete discharge thereof,' the debt 
 paid must have been a Uen on the property,* capable of being en- 
 forced,^ and the pa5mient must have been made under the com- 
 pulsion of necessity for the protection of him who makes the 
 payment that is, by one upon whom the creditor has the right 
 to call for payment.^ But it is not necessary that the payment 
 be made in money to entitle one to the right of subrogation. It 
 is suflScient if the creditor receives either property, negotiable 
 paper, or other securities from him in full satisfaction of the 
 demand.* 
 
 Subject to the principles here laid down, subrogation will be 
 made for the benefit of the insurers; of one creditor who has sat- 
 isfied the lien of a prior creditor;' of a purchaser who has extin- 
 guished an incumbrance upon the estate or property which he 
 has purchased;'" of a co-obligor or surety who has paid the debt 
 which ought to have been paid by another;" of legatees and de- 
 visees;^' of indorsers of commercial paper who have been com- 
 pelled to pay the debt of the maker.'' 
 
 The principle announced in the text must not be confounded 
 with the doctrine laid down in the leading case of Neily v. Jones," 
 and subsequently adhered to by our court, the doctrine thus laid 
 down being as follows: "A stranger who pays the debt of 
 
 ' 2 Beach, Mod. Eq. Jur., § 798. 
 
 2 Hinchman v. Morris, 29 W. Va. 673, 2 S. E. Rep. 863. 
 
 3 2 Beach, Mod. Eq. Jur., § 798. 
 
 < Harris v. Elliott, 45 W. Va. 245, 32 S. E. Rep. 176. 
 
 5 Carolina Interstate Bldg. & L. Ass'n v. Black, 119 N. C. 323, 25 S. E, 
 Rep. 975. 
 
 ^ McNeil v. Miller, supra; Burton v. Mill, 78 Va. 892; Clevinger v. Miller, 
 27 Gratt. 740. ' Combs v. Candler, 95 Va. 7, 27 S. E. Rep. 815, 
 
 9 Sheldon on Subrogation, ? 3. '° Post, i 413. 
 
 " Sheldon on Subrogation, ? 8. " Posi, ? 414. " Post, i 416. 
 
 M 16 W. Va. 625. 
 
554 EQUITY PRINCIPI,BS. 
 
 another without his request or authority, cannot sustain a suit 
 against the debtor, unless he has ratified the act of the stranger 
 by promising to repay him or in some other manner. 
 
 If such payment by a stranger is neither authorized nor 
 ratified by the debtor, it will not be held to be a discharge of the 
 debt. 
 
 If such payment by a stranger is neither authorized nor 
 ratified by the debtor, the stranger may sue the debtor at law in 
 the name of the creditor for his own use; but the debtor may by 
 pleading or relying on the payment of the stranger ratify it, and 
 such ratification being the equivalent of a previous request, the 
 debt will be thereby discharged, and the debtor will be liable to 
 be then sued by the stranger for money paid for him at his re- 
 quest. 
 
 A stranger, who pays the debt without the request or authority 
 of the debtor, when the payment is not afterwards ratified, may, if 
 he chooses, bring a suit in equity stating this fact and praying, 
 that, if the payment be not ratified by the debtor, the debt may 
 be enforced in his favor as the equitable owner thereof; or, if the 
 payment be ratified by the debtor, that the court will decree the 
 repayment to the stranger of the amount so advanced by him for 
 the use of the debtor; and the court will give the one relief or 
 the other prayed for. 
 
 The stranger, when he pays the amount of the debt to the 
 creditor, may without the consent of the debtor take an assign- 
 ment of the debt and enforce it against the creditor, and if, when 
 he pays the amount, it is agreed between the creditor and him 
 that the creditor will assign him the debt, though no actual as- 
 signment be made, the stranger will be regarded as the equitable 
 assignee of the debt, and the transaction will be considered 
 equivalent to the purchase of the debt.^ " 
 
 Where one pays the debt of another voluntarily, the principle 
 of subrogation appUes not, but only applies where he is surety for 
 the debt, or is compelled to pay it in order to protect his own 
 interests, or where the debt is assigned to him on payment, or 
 where he pays it under a special agreement that he shall be sub- 
 stituted to the rights of the creditor.* 
 
 • See also Moore v. Ivigon, 22 W. Va. 292; Beard v. Arbuckle, 19 W. Va. 
 135; Crumlish, Admr. v. Centifal Imp. Co., 38 W. Va. 390; s. c. 18 S. E. 
 Rep. 456. 
 
 ' Clark V. Moore, 76 Va. 262. 
 
SUBROGATION. 555 
 
 The doctrine of subrogation seems just to have been applied 
 formerly to cases of sureties alone, who had paid the debt of their 
 principal, the mere payment of the debt by the former entitling 
 them to be subrogated to all the rights and remedies of the 
 creditor, as a matter of course without any agreement to that ef- 
 fect.^ So that it is hardly necessary to state that when a surety 
 pays the debt of his principal he has a right to be substituted in 
 the room and place of the creditor, as to all his remedies, rights, 
 equities and liens against the principal debtor and his estate.^ 
 And also where one of two sureties on a note is obliged to pay 
 the same, he is entitled to put in his claim on the estate of his de- 
 ceased co-surety for the whole amount which he paid, and to re- 
 ceive dividends upon the basis of the entire debt until reimbursed 
 for his half of the common burden, belonging to both sureties, and 
 in that respect he likewise becomes subrogated to the rights and 
 remedies of the creditor.' 
 
 The right of the surety to substitution of the lien of the cred- 
 itor's judgment cannot be impaired by a subsequent transaction 
 of the principal with third persons.* This doctrine with refer- 
 ence to the rights of sureties extends to the case of a judgment 
 debtor who has obtained an injunction to the judgment, which 
 is afterwards dissolved, and the surety in the injunction bond is 
 sued thereon, and judgment is obtained against him, which he 
 afterwards discharges. He may and will be subrogated to the 
 benefit of the creditor's judgment lien." 
 
 A surety has the right, if compelled to pay the debt of his 
 principal, to be subrogated to all the rights, remedies, liens, pri- 
 orities and equities of the creditor as they existed at the date of 
 the contract of suretyship and before the debt was paid;' and this 
 right does not depend upon statutory provision, but results from 
 the principles of justice and equity.' And the rights of the 
 
 • Note to Southall v. Parish, i L. R. A. 641; Spaulding v. Harvey, 13 h. 
 R. A. 619, note. 
 
 ' Rodgers v. McClure, 4 Gratt. 81; Merwin v. Austin, 7 L. R. A. 84, note; 
 Loud V. Seargeut, i Edw. Ch. 164, King v. Baldwin. 2 Johns. Ch. 554. 
 
 3 Pace V. Pace, 95 Va. 792; 30 S. E. Rep. 361. 
 
 < Johnson v. Young, 20 W. Va. 614. 
 
 5 Rodgers v. McClure, 4 Gratt. 81. For a thorough consideration of the 
 law of subrogation as applied to suretyship, see Sheldon on Subrogation, §? 
 86-168. 
 
 « Conaway v. Odbert, 2 W. Va. 25, 36. 
 
 7 Manford v. Firth, 68 Ind. 83; Gerber v. Sharp, 72 Ind. 553; Downey v. 
 
556 EQUITY PRINCIPLES. 
 
 surety are superior to those of a purchaser without notice.' 
 This right of subrogation extends to the sureties on a sheriff 's 
 bond, where they have paid the debt or judgment of the state, 
 and such sureties are subrogated to the position of the state with 
 reference to all its rights and priorities.* But the remedy of sub- 
 rogation is no longer limited to sureties and quasi-sureties, but in- 
 cludes so wide a range of subjects that it has been called the 
 mode which equity adopts to compel the ultimate payment of a 
 debt by one who, in justice, equity and good conscience, ought 
 to pay it.' 
 
 ' 'The doctrine and remedy of subrogation are extended also to 
 the creditor, who is subrogated to, and entitled to the benefit of, 
 all securities given to a surety for purposes of his indemnification 
 by the principal debtor. ' ' * 
 
 In some of the succeeding sections we will exemplify this prin- 
 ciple of the law of equity as it is generally applied in courts of 
 chancery. 
 
 § 413. Subrogation vrhere purchaser of real estate or other 
 person discharges incumbrances thereon. 
 Where a party purchases real estate with covenants of general 
 warranty as to the title thereof, and is afterwards compelled to 
 pay off a trust lien or other incumbrance on said real estate, he will 
 be subrogated to the rights of the holder of the lien, and if he has not 
 paid all the purchase-money due on his purchase of the property, 
 he may offset the same to the amount he had to pay to liquidate 
 the incumbrance against said real estate.* Or, where a third 
 party, at the instance of a vendee, pays off a lien upon the land 
 purchased by such vendee or advances the money for that pur- 
 pose, he will be subrogated to the rights of the holder of such 
 lien.^ 
 
 Washburn, 79 Ind. 242; Rooker v. Benson, 83 Ind. 250; Freeman, Judgm., 
 § 470; Brandt, Suretyship, § 260 ei seq. 
 
 ' Peirce v. Higgins, loi Ind. 178; Downey v. Washburn, supra; Freeman, 
 Judgm., ? 470; I^eake v. Ferguson,* 2 Gratt. 419; Sheldon, Subr., ? 106; 
 Burbank v. Slinkard, 53 Ind. 493; McClung v. Beirne, 10 Leigh, 394; Cot- 
 treel's Appeal, 23 Penn. 294; Edmunds v. Venable, i P. & H. 121. 
 
 = Myers v. Miller, 45 W. Va. 595, 31 S. E. Rep. 976. 
 
 3 2 Beach, Mod. Eq. Jur., I 800. ■• 3 Pomeroy, Eq. Jur., | 1419. 
 
 5 Hoke V. Jones, 33 W. Va. 501; s. c. 10 S. E. Rep. 775; McNeil v. Miller, 
 29 W. Va. 480; s. c. 2 S. E. Rep. 335. 
 
 « Hulings V. Hulings Lumber Co., 38 W. Va. 351; s. c. 18 S. E. Rep. 620; 
 
SUBROGATION. 557 
 
 Or if a purchaser discharges a Hen upon real estate under a 
 contract with his vendor, which the latter is unable to carry out, 
 such purchaser will be subrogated to the rights of the owner of 
 such lien, and may enforce the same against the real estate.^ 
 And where a decree was rendered for the sale of a tract of land 
 at public sale, and there was but one judgment lien on it at the 
 time, and, by the consent of the judgment creditor and the 
 debtor, the land was, by the commissioner, sold to the wife of 
 the debtor, and, out of her separate estate, she without fraud 
 paid for the land, by paying the said judgment and costs of the 
 suit, and afterwards another judgment was recovered against the 
 debtor, while the wife is not entitled to hold the land under her 
 purchase, yet she is entitled to be subrogated to the rights of the 
 creditors in the said judgment which she discharged.* 
 
 A sale ordinarily implies that the vendee shall have a clear 
 and unincumbered title; and, unless it is otherwise agreed, a 
 mortgage, judgment or other incumbrance should be discharged 
 by the vendor. In such case the vendor is primarily liable for 
 the incumbrance; and if he fails to discharge it and the vendee 
 is compelled to satisfy it in order to protect the property, he will 
 be subrogated to the incumbrance so paid off by him.' 
 
 It is laid down as a general rule of almost universal acceptance 
 that when there is a mortgage upon real estate any person who 
 has the right to redeem such mortgage, and actually does redeem 
 it, is entitled for his indemnity to be subrogated to the lien of 
 the mortgage and to hold the land until he is reimbursed to the 
 amount so paid.* And, as a general rule, any person having an 
 interest in property subject to an incumbrance which may defeat 
 or impair his title, has a right to disengage the property by the 
 payment of the incumbrance; and when he does so, if the debt 
 is not one for which he is liable personally, he is entitled to be 
 subrogated to the rights of the incumbrancer against the prop- 
 erty.' 
 
 Price V. Davis, 88 Va. 939; s. c. 14 S. E. Rep. 704; Norris v. Woods, 89 Va. 
 873; s. c. 17 S. E. Rep. 552- 
 
 • James v. Burbridge, 33 W. Va. 772; s. c. lo S. E. Rep. 396. 
 
 » Hutson V. Sadler, 38 W. Va. 358; s. c. 6 S. E. Rep. 920. 
 
 3 Opinion of Snyder, J., in McNeil v. Miller,"29 W. Va. 335; s. c. 2 S. E. 
 
 Rep. 335. 
 
 « Gate-wood v. Gatewood, 75 Va. 407. 
 
 s Joyce V. Dauntz, 00 Ohio St. 000; 45 N. E. Rep. 900. 
 
558 EQUITY PRINCIPI<ES. 
 
 It is necessary, in a bill to enforce a judgment lien by a surety, 
 where such surety has paid the judgment, that the original 
 judgment creditors, whose judgment he has paid, be made 
 parties.' 
 
 § 414. Subrogation of legatees and devisees — 
 
 A legatee will be allowed the same rights of subrogation as are 
 accorded to a creditor of the estate.^ Thus, where the personal 
 estate is not sufficient to pay both debts and legacies, and a 
 legatee pays a debt of the decedent, which is a charge against all 
 the estate, he will be subrogated to the rights of the creditor as 
 against the heir at law, and he may have his legacy paid out of the 
 personal estate, and the debt to which he has been subrogated, 
 out of the real estate, if it be necessary to resort to this, to pay 
 both, unless, indeed, the payment of legacies has been restricted 
 to the personal estate of the testator.' And where a testator, 
 having agreed to purchase an estate, died, leaving the greater 
 part of the purchase-money unpaid, a legatee was allowed to 
 have the assets marshaled in respect of the vendor's lien for the 
 unpaid purchase-money, so that his legacy might be paid.* So 
 where the devisee of a certain tract of land, which became sub- 
 ject to a lien debt by the act of the testator in his lifetime, pays 
 off such debt, he is entitled to be subrogated to the claim of the 
 creditor against the personal assets of the estate;^ and the lien 
 creditor of the devisee will have the same right of subrogation.* 
 Since the specific legatees are entitled to receive their bequests 
 exonerated from incumbrances created by the testator, they have 
 likewise, if their legacies have been sold for the payment of the 
 testator's debts, the right to resort to the general fund for their 
 remuneration, upon the principles adopted in the marshaling of 
 assets.' 
 
 ' Hoffman v. Shields, 4 W. Va. 490. 
 
 ' Sheldon on Subrogation, I 208. 
 
 3 MoUaw V. Griffith, 3 Paige (N. Y.), 402, h. ed., Book 3, page ?o6. 
 
 < Sheldon, Subr., ? 208. s Idem, 21 1, « /dem. 
 
 1 Cranmer v. McSwords, 24 W. Va. 594. 
 
SUBROGATION. 559 
 
 § 415. Subrogation with respect to insurance compa- 
 nies — 
 
 The doctrine of subrogation by insurance companies can only 
 be invoked in cases of marine and fire losses.' 
 
 With respect to life insurance it is otherwise, as when the life 
 that is insured has been lost by reason of a wrongful act, the 
 connection between the insurers and the wrongdoer is not direct 
 enough to give them a remedy against the latter. ' .Thus when 
 a person is killed by a railroad company's negligence the insur- 
 ers of the life of the deceased, having paid the policy, cannot 
 recover against the railroad.' 
 
 Where property that is insured is destroyed by the negligence 
 of a third person, so that the assured has a remedy against him 
 therefor, the insurer, by the payment of the loss, becomes sub- 
 rogated to the rights of the assured to the extent of the sum 
 paid under the policy, and may bring an action in the name of 
 the assured to recover the amount so paid. In such cases the as- 
 sured stands in the relation of a trustee to the insurer to the 
 extent of the sum paid, and he cannot even release the right 
 of action, nor the action itself, if one has been commenced, so as 
 to defeat the claim of the insurer to reimbiu-sement from the 
 wrongdoer for the injury.* 
 
 But where the insurance company has only paid a part of the 
 debt or liability, there can be no subrogation. The debt must 
 be paid in full before the right of subrogation will accrue to 
 the insurer.' And suit to enforce subrogation must be in the 
 name of the insured, and not in the name of the insurer.* 
 
 ' 2 Beach, Mod. Eq. Jur., H 817, 818. 
 
 ' 2 Beach, Mod. Eq. Jur., ? 816. ^Idem. 
 
 « Brighthope Railway Co. v. Rogers, 76 Va. 443; PhcEnix Ins. Co. v. Penn. 
 Co., 134 Ind. 215; s. c. 20 I,. R. A. 405; Deming v. Merchants Cotton Press & 
 S. Co., 9oTenn. 306; s. c. 13 L. R. A. 518; Hall v. Nashville, etc., R. Co., 
 13 Wall. 36; Phoenix Ins. Co. v. Erie & W. Trans. Co., 117 U. S. 312; Hol- 
 comb V. Richmond & D. R. Co., 78 Ga. 776; s. c. 3 S. E. Rep. 755; Hart v. 
 Western R. Coop. 13 Mete. 99; Connecticut Mut. I/if. Ins. Co. v. New York 
 & N. H. R. Co., 25 Conn. 265; Fetter on Equity, p. 255. See also the case 
 of St. Louis, Arkansas and Texas R. Co. v. Fire Association of Philadelphia, 
 60 Ark. 325; s. c. 28 L. R. A. 83. 
 
 5 Phoenix Ins. Co. v. First Nat. Bank, 86 Va. 765; s. c. 8 S. E. Rep. 719. 
 
 « Fayerweather v. Phoenix Ins. Co., 118 N. Y. 324; s. c. 6 L. R. A. 805; Mo- 
 bile Ins. Co. V. Columbia and Greenville R. Co., 41 S. C. 408; s. c. 19 S. E. 
 Rep. 858. 
 
56o EQUITY PRINC1PI,ES. 
 
 As the right of subrogation is the creature of a court of equity, 
 one might properly conclude that all suits to enforce such right 
 should be brought there, but this is not the rule of practice. 
 Where the right of the insured to which the insurer has been 
 subrogated must be enforced at law, so must the action of the in- 
 surer, seeking the enforcement of the subrogated right, be 
 brought at law.' 
 
 Under this doctrine of the law a railroad company or other per- 
 son is not entitled to any part of the insurance contracted for 
 and collected by the owner of the property destroyed by a 
 fire communicated from a railroad locomotive, although the rail- 
 road company is given by a statute an insurable interest in such 
 property with the right to insure it for its own protection.^ In 
 view of this principle of subrogation so often invoked for their 
 own indemnity by insurance companies who have paid a loss oc- 
 casioned by the negligence or wrong of another, particularly that 
 of a common carrier, the carrier often stipulates with the owner 
 to defeat this right.^ A contract between the owner of goods 
 shipped and the common carrier may be so drawn as to preclude 
 the right of subrogation on the part of an insurance company, 
 who had insured the goods lost through the negligence of the 
 carrier over whose line they were transported.* 
 
 ■ St. Ijouis, Ark. and Texas R. Co. v. Fire Association of Philadelphia, 
 60 Ark. 325; s. c. 28 L. R. A. 83, citing Monmouth County Mut. F. Ins'. Co. 
 V. Hutchinson, 21 N. J. Eq. 107; Sheldon, Subr. (20th ed.), § 231. 
 
 ' Mathews v. St. Louis & S. F. R. Co., 121 Mo. 298; s. c. 25 L. R. A. 161; 
 Hammond v. Schiff, 100 N. C. 161; s. c. 6 S. E. Rep. 753. 
 
 3 Fayerweather v. Phoenix Ins. Co., 118 N. Y. 324; s. c. 6 L. R. A. 805. 
 
 < Payerweather v. Phoenix Ins. Co., supra; in support of -which there is 
 cited by the court, Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 175; Piatt v. 
 Richmond Y. R. & C. R. Co., 20 Jones & S. 496; affirmed 11 Cent. Rep. loi, 
 108 N. Y. 358; Phoenix Ins. Co. v. Erie & W. Transp. Co., 10 Biss. 18, af- 
 firmed, 117 U. S. 312, 29 L. Ed. 873, and Re Phoenix Ins. Co., 118 XT. S. 610. 
 30 L. Ed. 274. 
 
 The bill of lading in Fayerweather v. Phoenix Ins. Co. contains the fol- 
 lowing provisions: "It is further stipulated and agreed that in case of any 
 loss, detriment or damage to be sustained by any of the property herein re- 
 ceipted for during such transportation, whereby any legal liability or responsi- 
 bility shall or may be incurred by the terms of this contract, that company 
 alone shall be held answerable therefor in whose actual custody the same 
 may be at the time of happening of such loss, detriment or damage, and 
 the carrier so liable shall have the full benefit of any insurance that may 
 have been effected upon or on account of such goods." 
 
SUBROGATION. 561 
 
 § 416. Subrogation as to indorsers of commercial paper — 
 A promissory note or bill of exchange is not canceled by pay- 
 ment by an indorser, but the instrument is kept alive for the 
 latter's benefit so far as the obligations of prior indorsers and the 
 maker are concerned. But this is subject to exception. Thus, 
 where a prior indorser fails, through the fault of him who makes 
 the payment, to get notice of the protest, the latter will not be 
 subrogated to the rights of the holder whom he pays.' A bona 
 fide holder of a note or bill may transfer to another for valuable 
 consideration all the rights in it which he himself has, even 
 though it is overdue, and with the transfer of such an instrument 
 will pass the right to participate in all the collateral by which it 
 is secured.^ A stranger can not pay a note and thereby be sub- 
 rogated to the rights of the holder, but the note is satisfied and 
 the maker discharged, unless it is the intent of the parties that 
 he shall be so subrogated, and it is made effective by a proper 
 agreement.' It is a general principle of equity that when 
 securities are held for the payment of a note or bill of exchange, 
 the parties who are liable thereon and have discharged their 
 liability are entitled to the benefit of the security.* 
 
 Indorser for accommodation paying off judgment against him- 
 self and the maker on a protested negotiable note is entitled to 
 be subrogated to all the rights of the holder. He is under no 
 obligation to appeal from the judgment, as he could not know 
 that relief could be thus obtained. The law imposes no such un- 
 reasonable burden upon a surety.* But one indorser has no 
 right to contribution against the others, where the several in- 
 dorsements were made for the accommodation of the drawer, un- 
 less there is a stipulation to that effect.^ 
 
 • 2 Beach, Mod. Eq. Jur., § 815. ''Idem. ^Idem. 
 
 'Idem. "A judgment obtained against a subsequent indorser is not con- 
 clusive against a prior indorser; but in order to make him responsible, where 
 the subsequent indorser has paid the debt, his liability must be fixed as 
 though no judgment had ever been obtained. 
 
 "But when such liability is fixed, a security of the subsequent indorser 
 in a forthcoming bond is entitled to be substituted into the shoes of his 
 principal to the extent of that liability; but before he can take the place of 
 the judgment creditor, such creditor must be a party to the suit." Cona- 
 way V. Odbert, 2 W. Va. 25. 
 
 5 Bank of the Old Dominion v. Allen, 76 Va. 200. 
 
 ' Farmer's Bank v. Van Meter, 4 Rand. 553. 
 
 36 
 
562 EQUITY PRINCIPLES. 
 
 § 416a. As to subrogation among joint debtors — 
 
 It is said that the right of subrogation has been denied among 
 parties severally bound as prineipals;' but be this as it may, the 
 usual rule, and the one prevailing with us, is that one of several 
 joint debtors will, as against his co-debtors, ordinarily be subro- 
 gated to the securities and means of payment of the common 
 creditor whom he has satisfied, so as to enable him to recover 
 from his co-debtors, by means thereof, their proportional shares 
 of the indebtedness which he has discharged;' and this is so, 
 whether the obligation arises from contract or operation of law.' 
 
 § 417. W^ho are not entitled to subrogation — 
 
 Subrogation, as we have already seen,* depends upon contract 
 or debt, properly so called, and therefore the discharge of an 
 obligation, which is not a debt, does not entitle a party to the right 
 of subrogation. Thus, the payment of a tax by the sheriff or 
 other tax collector will not allow him to be subrogated to the 
 rights of the state,' as a tax is not treated by the courts as a 
 debt, when used in connection with the principle of subroga- 
 tion.* Nor is subrogation given to one who officiously as a 
 stranger pays the debt of another.^ Hence, a sheriff or other 
 officer who pays an execution in his hands for collection, with- 
 out an assignment of the judgment on which it is founded or 
 the debt, is not entitled to be subrogated to the lien of the 
 creditor whose debt he has paid against other creditors having 
 liens by judgment or otherwise.' 
 
 ' Sheldon on Subrogation, ? 169. 
 
 'Dobyns v. Rawley, 76 Va. 537; Tompkins v. Mitchell, 2 Rand. 428; 
 Horton v. Bond, 28 Gratt. .825; Baltimore & Ohio R. Co. v. Walker, 45 Ohio 
 St. 577, 16 N. E. Rep. 475. 
 
 3 Baltimore & Ohio R. Co. v. Walker, supra. *Ante, ? 412. 
 
 5 Hincheman v. Morris, 29 W. Va. 673; s. c. 2 S. E. Rep. 863; Griffing v. 
 Pintard, 25 Miss. 173; Mercantile Trust Co. v. Hart, 35 L. R. A. 352, 76 Fed. 
 Rep. 352. 
 
 * Hincheman v. Morris, supra; Wallace's Estate, 59 Penn. St. 401; Mcln- 
 ery v. Reed, 23 Iowa, 410. 
 
 ? Bates V. Swiger, 40 W. Va. 420; s. c. 21 S. E. Rep. 874; McNeil v. Miller, 
 29 W. Va. 480; s. c. 2 S. E. Rep. 335; Feamster v. Withrow, 12 W. Va. 612; 
 Skinner V. Terrell, 159 Mass. 474; Bank of Antigo v. Union Trust Co., 149 
 m. 343; s. c. 23 L. R. A. 611; 2 Beach, Mod. Eq. Jur., ggSoo, 801, 815; Jan. 
 ney's Ex'r v. Stephen's Adm'r, 2 P. & H. 11; Burton v. Mill, 78 Va. 478. 
 
 ^ Feamster v. Withrow, supra. But see Beard v. Arbuckle, 19 W. Va. 135. 
 
SUBROGATION. 563 
 
 Nor does the voluntary payment of a debt by judgment or 
 mortgage, constituting a lien on land, entitle the party paying it 
 to be subrogated to the lien of the judgment creditor.^ 
 
 One guilty of fraud in the transaction on which he asks sub- 
 rogation is not entitled thereto, because a court of equity re- 
 quires every one coming there for relief to do so with clean 
 hands. Therefore a second purchaser, who, with notice of the 
 right of a first purchaser, pays off a hen on the land, cannot 
 ask to be substituted to if .^ 
 
 As subrogation is an equity, it will not be enforced when the 
 effect will be to prejudice or impair the rights of third persons, 
 it being well settled that where both parties have an equal claim 
 to the consideration of a chancellor, the law will be suffered to 
 take its course.' 
 
 • Janney v. Stephens, 2 P. & H. 11; Hoffman v. Ryan, 21 W. Va. 415, 435. 
 ' Bates V. Swiger, 40 W. Va. 420; s. c. 21 S. E. Rep. 874. 
 3 McClaskey & Crim v. O'Brien, 16 W. Va. 791, 792. See 21 W. Va. 
 415. 416. 
 
564 BQUITY PRINCIPLBS. 
 
 CHAPTER XXXIX. 
 USURY. 
 
 i 418. The legal rate of interest and the statute relating thereto. 
 
 419. What contracts and agreements usurious. 
 
 420. What contracts, bargains or agreements not usiuious. 
 
 421. Interest on interest, when and when not usurious. 
 
 422. What law governs as to rate of interest. 
 
 423. How interest computed in cases of partial payments. 
 
 424. Applications of usurious interest to liquidation of principal debt. 
 
 425. How and by whom defense of usury may be made. 
 
 426. The pa3?ment of usurious interest may be recovered back and how. 
 
 427. As to the proof of usury. 
 
 428. As to the calculation of interest in the entry of a decree. 
 
 § 418. The legal rate of interest and our statute relating 
 thereto — 
 
 Our statute provides that ' 'legal interest shall continue to be 
 at the rate of six dollars upon one hundred dollars for a year, 
 and proportionally for a greater or less sum, or for a longer or 
 shorter time, and no person, upon any contract, shall take for the 
 loan or forbearance of any money or other thing above the value 
 of such rate." 
 
 All contracts and assurances made directly or indirectly for the 
 loan or forbearance of money or other thing at a greater rate of 
 interest than six per cent, except where such greater rate is now 
 allowed by law, shall be void as to any excess of interest agreed 
 to be paid above that rate, and no further.' 
 
 § 419. ^Vhat contracts and agreements usurious — 
 
 In this state, six per cent, as we have seen, is the legal rate of 
 interest, and no more than this can be recovered; our statute con- 
 templates that a search for usury shall not stop at the mere form 
 of the bargain and contracts relative to such loan, but that all 
 shifts and devices intended to cover a usurious loan or forbear- 
 ance shall be pushed aside, and the transaction be dealt with as 
 usury, if it be such in fact.' So that, where a party buys a tract 
 
 " Code, chap. 96, ?? 4 and 5. 
 
 • Crim V. Post, 41 W. Va. 397; s. c. 23 S. E. Rep. 613. 
 
USURY. 565 
 
 of land, paying therefor by the assignment of notes taken to 
 himself for money loaned at a usurious rate of interest, apparent 
 on the face of the notes; afterwards, the notes are counted up at 
 the usurious rate, a bonus added, and new notes therefor given 
 by the debtor to the assignee, with a deed of trust to secure their 
 payment, and the new transaction is given the color of being the 
 original sale of the land, rescinded — and the land resold, it is held 
 that the transaction is usurious.^ 
 
 § 420. What contracts, bargains or agreements not usu- 
 rious — 
 
 A debt, to be usurious, must be so in the beginning. It can- 
 not be made so by subsequent events. A usurious agreement is 
 one to pay originally a greater rate of interest than the law al- 
 lows.' Thus, a bond is not usurious where it provides for a 
 gjeater rate of interest than that prescribed by law payable only 
 after its maturity.' Nor can a charge of usury be made out where 
 a consideration has passed for the excess of interest over the legal 
 rate; as where a purchaser of property, as a part of the con- 
 sideration of the conveyance, assumes payment of a debt secured 
 thereon by a trust deed. In such case, he cannot interpose the 
 defense of usury to the enforcement of the trust.* 
 
 And to constitute usury there must be a borrowing and lend- 
 ing with intent to exact more interest than is allowed by law, or 
 a forbearance in consideration of such interest being paid.° So 
 that, if the interest is contracted for or paid as a part of the 
 purchase-money or consideration price of the sale of a tract of 
 land, the transaction is not usurious." 
 
 The sale of stock and notes in the usual course of trade and 
 business does not usually constitute usury, though for a discount 
 o^ reduction at a rate greater than that of legal interest.'' 
 
 ' Crim V. Post, supra. 
 
 ' Opinion of Riely, J., in Ward's Adm'r v. Cornett, 91 Va. 676; s. c. 22 S. 
 E. Rep. 494. 
 3 Ward-s Adm'r v. Cornett, supra. 
 
 * Dickenson v. Bankers' L. & I. Co., 93 Va. 498, 25 S. E. Rep, 548. 
 5 Swayne v. Riddle, 37 W. Va. 291; s. c. 16 S. E. Rep. 512. 
 
 * Swayne v. Riddle, supra; Reger v. O'Neal, 33 W. Va. 159; s. c. 10 S. E. 
 Rep. 357; Myers v. Roller, 85 Va. 621, s. c. 8 S. E. Rep. 483. 
 
 7 Kelly V. Lewis, 4 W. Va. 456; Lynchburg Nat. Bank v. Scott, 91 Va. 652; 
 s. c. 22 S. E. Rep. 487; Bank v. Evans & Dorsey, 9 W. Va. 373; Moseley v. 
 Brown, 76 Va. 419, 421, and authorities there cited. 
 
566 EQUITY PRINCIP1,ES. 
 
 § 421. Interest on interest, ^vhen and wrhen not usurious — 
 An agreement to pay interest upon interest is valid, if made after 
 tlie interest, which is to bear interest, has become due and payable.^ 
 For instance: Where a bond providing for the payment of in- 
 terest annually was secured by a deed of trust, and afterwards, 
 for several years, when the interest was due and payable, interest 
 notes were executed, bearing the same rate of interest as the 
 original bond, as between the parties, the deed of trust will se- 
 cure the payment of interest on these new interest notes, but 
 such interest cannot avail as against subsequent creditors or pur- 
 chasers.* But after interest on a debt has become due, an agree- 
 ment that compound interest shall be allowed on the various 
 amounts of interest which had previously fallen due, in consid- 
 eration of a forbearance on the part of the creditor to collect the 
 debt, is a usurious contract.' 
 
 That interest on interest may be properly charged, there must 
 be an agreement between the parties to that effect.' 
 
 § 422. W^hat lavr governs as to rate of interest — 
 
 The rate of interest authorized by the laws of the place where 
 the contract is made will be enforced in this state. "^ 
 
 In Shipman v. Bailey, cited in the foot-notes, our supreme 
 court says: "In contracts for the payment of money, the inter- 
 est on the principal sum is a legal incident of the debt and a part 
 of the contract; and wherever there is a contract for the payment 
 
 ' Craig V. McCulloch, 20 W. Va. 148. "A., being indebted to B. by -writ- 
 ten contract, from time to time, as interest became due and payable by the 
 terms of such contract, gave to B. his notes for such accrued interest, and 
 subsequently, on a settlement between the parties, said notes, with the in- 
 terest computed thereon from their respective dates, are added to the orig- 
 inal debt, and an obligation is then executed by A. to B. for the aggregate 
 amount, bearing interest from date, and a trust deed on real estate given to 
 secure said obligation. Held, this is not usurious or inequitable." Idem. 
 
 See Stansbury v. Stansbury, 24 W. "Va. 634; Barbour v. Tompkins, 31 W. 
 Va. 410; s. c. 7 S. E. Rep. i. 
 
 ' Barbour v. Tompkins, supra. 3 Stansbury v. Stansbury, supra. 
 
 < Genin v. Ingersoll, 11 W. Va. 549; Kndall v. The Bank of Marietta, 10 
 Leigh, 481. 
 
 s Shipman v. Bailey, 20 W. Va. 140; Klinck v. Price, 4 W. Va. 4; Pugh v. 
 Cameron, 11 W. Va. 523; Nickells v. People's Building, I<oan and Savings 
 Ass'n, 93 Va. 381; s. c. 25 S. E. Rep. 8. 
 
USURY. 567 
 
 of a specified legal rate of interest, whether such rate is fixed by 
 the contract, itself or by the law of the place where it is made, 
 the obligation of the contract extends to the payment of such in- 
 terest as fully as it does to the principal sum, and courts have no 
 more power to change the rates thus fixed than they have to 
 dispense with the enforcement of the contract either in whole or 
 in part. 
 
 "A contract for the payment of interest at the rate of eight 
 per cent from date until paid, if such rate is authorized by the 
 laws of the place where the contract is made, may be computed 
 at such rate to the date of the decree, under the provisions of 
 section sixteen, chapter one hundred and thirty-one, of the Code 
 of this state, and the decree for the aggregate sum thus com- 
 puted will continue to bear interest at such rate. ' ' 
 
 § 423. How^ interest computed in cases of partial pay- 
 ments — 
 
 The rule is, that where payments are made from time to time 
 on a debt bearing interest, the interest is to be computed on the 
 debt up to the time of payment, and the payment is to be de- 
 ducted from the amount, principal and interest, and the balance 
 forms a new capital; on that balance interest is to be computed 
 from that time, but the new capital must not be more than the 
 former. If the payment be less than the interest due at the 
 time, the surplus of interest must not augment the capital.' 
 
 § 424. Application of usurious interest to liquidation of 
 principal debt — 
 Where usurious interest has been paid on a debt, and any part 
 of the principal remains unpaid, a court of equity will apply such 
 interest to the discharge of the principal as of the date of the 
 payment of the usurious interest.' But there is an exception to 
 this rule where usurious interest has been actually paid to a 
 national bank on discounting and renewing a series of notes. In 
 
 ■ Hunt's Adm'r v. Hite, Adm'r, 20 W. Va. 183; Ward v. Ward, 21 W. Va. 
 262. 
 
 = Reiger v. O'Neil, 33 W. Va. 159; s. c. 10 S. E. Rep. 375. See also Moore 
 V. Johnson. 34 W. Va. 672; s. c. 12 S. E. Rep. 918; Meem v. Dukaney, 88 Va. 
 674; s. c. 14 S. E. Rep. 363; Exchange and Deposit Bank v. Fugate, 93 Va. 
 821; s. c. 23 S. E. Rep. 884. 
 
^68 BQUITY PRINCIPI<ES. 
 
 such case the usury paid to the bank on various notes cannot be 
 applied to the discharge of the principal of the last of them.' 
 
 It is said in this case, cited in the foot note, that "Congress 
 having prescribed the penalty for the taking of usurious interest 
 by a national bank and likewise the remedy for recovering such 
 interest, the states and their courts are bound thereby and they 
 can neither add to the penalty nor apply any remedy other than 
 that so prescribed. ' ' 
 
 § 425. How and by whom defense of usury may be made — 
 
 The defense of usury is a personal one and can only be inter- 
 posed by the debtor himself, or, in case of his death, by his per- 
 sonal representative.^ Therefore one creditor in the lifetime of 
 the debtor cannot interpose a plea of usury to defeat the claim 
 of another creditor.' 
 
 The defense of usury can only be made before a court or 
 commissioner by distinctly alleging the charge of usury in the 
 note or other demand upon which the liability is claimed.* If 
 the defense of usury is raised by plea or answer, the general 
 averment that interest at a greater rate than that allowed by law 
 was charged in the debt, or an allegation substantially to this 
 effect, is sufficient.^ 
 
 The question of usury may be also referred to a commissioner 
 to determine." 
 
 In Barbour v. Tomkins, cited in the foot notes, the court 
 holds: "It is not always necessary that the defense of usury 
 should be raised by plea or answer. It may be relied on before 
 a commissioner; and if the commissioner audits a usurious claim 
 against the debtor, and he has not raised such defense in any 
 other mode in the suit, he must in a written exception to the 
 report, signed by counsel or himself, clearly and distinctly ex- 
 cept on the ground that, in the report, interest has been charged 
 against him in excess of what the law allows. A mere request 
 by himself, of the commissioner, to make an alternative state- 
 
 ' Bank v. Bayleti, 26 W. Va. 554. 
 
 ' Barbour v. Tompkins, 31 W. Va. 410; s. c. 7 S. E. Rep. i; Sprengler v. 
 Snapp, 5 Leigh, 478. 
 
 3 Lee V. Feamster, 21 W. Va. 108. * Barbour v. Tompkins, supra. 
 
 5 Kelly V. Lewis, 4 W. Va. 456; Hooff v. Rollins, 5 W. Va. 540; Code, chap. 
 96, sec. 6. 
 
 ' Rohrer v. Travers, 11 W. Va. 146. 
 
USURY. 569 
 
 ment of the claim against him, charging the legal rate of in- 
 terest, which the commissioner does, and then the commissioner 
 reports the claim against him at ten per cent, or with illegal in- 
 terest, and he does not except to the report on the ground that 
 usurious interest is charged against him, fails to raise the defense 
 of usury." 
 
 Under the statute of this state no corporation can interpose the 
 defense of usur}' in any action at law or suit in chancery.' 
 
 § 426. The payment of usurious interest may be recovered 
 back and how — 
 
 Our statute provides that "any borrower of money or other 
 thing my exhibit a bill in equity against the lender, and com- 
 pel him to discover upon oath the money or thing really lent, 
 and all bargains, contracts or shifts relative to such loan, and the 
 interest or consideration of the same, and if it appear that more 
 than lawful interest was reserved, the lender shall recover his 
 principal money or other thing with six per cent interest only, 
 but shall recover no costs. If property has been conveyed to se- 
 cure the payment of the debt, and a sale thereof is about to be 
 made, or is apprehended, an injunction may be awarded to pre- 
 vent such sale pending the suit.'" 
 
 Aside from this statute, a bill in equity may be filed for relief 
 on account of money already paid on a usurious contract under 
 the general principles of a court of equity, the measure of relief 
 in such case being the excess paid above the principal and legal 
 interest, with interest on such excess from the time of its pay- 
 ment.' 
 
 Where the transaction out of which the charge of usury 
 springs has closed, the excess of interest paid beyond the legal 
 rate may be recovered in an action of assumpsit for money had 
 and received,* as well also as in a court of equity by an original 
 bill filed for that purpose.' 
 
 A judgment at law upon a contract tainted with usury does 
 
 [ ' Code, chap. 52, sec. 22. ' Code, chap. 96, sec. 7. 
 
 3 Davis V. Demming, 12 W. Va. 246; Moseley v. Brown, 76 Va. 419, 423; 
 Munfoird v. McVeigh's Adm'r, 92 Va. 446; s. c. 23 S. E. Rep. 857. See opin- 
 ion of Snyder, J., in Norvell v. Hedrick, 21 W. Va. 529. 
 
 * Norvell v. Hedrick, 21 W. Va. 523. 
 
 5 Spengler v. Snapp, 5 Leigh, 478; opinion of court in Munford v. Mc- 
 Veigh, 92 Va. 441; s. c. 23 S. E. Rep. 857. 
 
570 EQUITY PRINCIPIvBS. 
 
 not relieve from such infection, and a court of equity will relieve 
 therefrom by a bill filed for that purpose, when such bill puts the 
 matter of usury directly in issue. ^ 
 
 § 427. As to the proof of usury — 
 
 In Vangilder v. Hoffman,' the court, in the course of its opin- 
 ion, after reviewing some of the authorities as to the evidence re- 
 quired to establish the charge of usury, says: "The true rule I 
 take it is, that where by statute a penalty is imposed on the 
 usurer, usury can be established only by clear and satisfactory 
 proof, and that a simple preponderance of the evidence would not 
 suffice to establish usury. The rule, which governs in criminal 
 cases, that the evidence must prove the usury 'beyond a reason- 
 able or rational doubt.' is not applicable, and has not been 
 and should not be adopted by the courts.'" 
 
 It would seem, on principle under our system of equity prac- 
 tice, and inasmuch as the lender simply forfeits the excess over 
 the legal rate of interest, and in effect forfeits nothing in con- 
 templation of law under a usurious interest contract, that the 
 charge of usury should require no higher nor stronger proof for 
 its establishment than any. other question at issue in a chancery 
 suit. We think that if the question should come before our 
 courts under the present usury law, that they would so hold on 
 the question of the quantum or degree of proof. 
 
 § 428. As to the calculation of interest in the entry of a 
 decree — 
 
 It is error to give interest upon the aggregate of principal and 
 interest from a time anterior to the date of the decree. The 
 calculation upon this aggregate should be from the date of the 
 entry of the decree.* The interest should be calculated at the 
 rate agreed upon, both on the principal and on the amount of 
 the decree until paid,' unless the contract rate is usurious and 
 
 ' Bloss V. Hull, 27 W. Va. 503, 504. ' 22 W. Va. i, 15. 
 
 3 In the case of Ward's Adm'r v. Cornett, 91 Va. -676; s. c. 22 S. E. Rep. 
 494> 496, the court, in its opinion, says: "Usury is a quasi penal offense, 
 and must be strictly proved. The evidence must establish it beyond a rea- 
 sonable doubt." 
 
 < Lamb v. Cecil, 25 W. Va. 288; Fleming v. Holt, 12 W. Va. 143; Ruffner 
 & Donnally v. Hewitt, 14 W. Va. 738; Murdock v. Ins. Co., 33 W. Va. 407. 
 
 5 Pickens v. McCoy, 24 W. Va. 344; Shipman v. Bailey, 20 W. Va. 140. 
 
USURY. 571 
 
 the usury has been pleaded; but if the rate is greater than six 
 per cent by contract and is enforceable, the decree should draw 
 interest at the contract rate;^ and if the contract rate is less than 
 six per cent, as, for instance, three per cent, the decree should 
 provide for the payment of interest thereon at three per cent.' 
 
 ' Shipman v. Bailey, 20 W. Va. 140. ' Pickens v. McCoy, supra. 
 
572 EQUITY PRINCIPLES. 
 
 CHAPTER XL. 
 
 WILLS. 
 
 i 429. Equity jurisdiction as to the contest of wills. 
 
 430. Manner of contesting a. will and the form of the issue to be di- 
 
 rected. 
 430a. Trial by jury in a court of equity and the awarding of damages 
 therein. 
 
 431. Who may bring suit to contest a will. 
 
 432. Parties defendant in a suit to contest a will. 
 
 433. Who to be plaintiff and who to be defendant in the issue when di- 
 
 rected. 
 
 434. Contest of a will a proceeding inter partes. 
 
 435. When a will contest is decided, the functions of the suit are ex* 
 
 hausted. 
 
 436. A will may be good in part and void in part. 
 
 437. Equity jurisdiction as to lost wills. 
 
 § 429. Equity jurisdiction as to the contest of \irills — 
 
 The right to contest a will in a court of equity is not one of its 
 inherent powers, but exists by virtue of statute law.^ 
 
 Indeed, the proceeding, in any form, to contest or set aside a 
 will, is of pure statutory creation.* 
 
 After a will has been probated, either in the county court or 
 in the circuit court upon appeal from the county court, any per- 
 son interested, who was not a party to the probate proceedings, 
 may within five years proceed by bill in equity to impeach or es- 
 tablish the will, on which bill a trial by jury shall be had if re- 
 quired by either party.' 
 
 "And any person interested who, at the time of the sentence 
 
 ' Gaines v. Fuentes, 92 U. S. 10; Broderick's Will, 21 Wall. 583; Harrison 
 V. Ginnon (Tenn., 1880), 10 Cent. L. J. 456; Wolcott v. Wolcott, 140 Mass. 
 194, 3 N. E. Rep. 214; Waters v. Stickney, 12 Allen, i. 
 
 = Lamb v. Lamb, 10 Ind. 456, 5 N. E. Rep. 171; Deig v. Morehead,, no 
 Ind. 451, II N. E. Rep. 458; Luther v. Luther, 122 111. 558, 13 N. E. Rep. 
 166; Gaines v. Fuentes, 92 V. S. 20; Broderick's Will, 21 Wall, 503. For a 
 review of the statute relating to will contests in Illinois, Kentucky, Virginia 
 and England, see Luther v. Luther, supra. 
 
 3 Code, chap. 77, sec. 32. 
 
wii<ts. 573 
 
 or order, is within the age of twenty-one years, may file a bill in 
 equity to impeach or establish the will, within one year after he 
 becomes of age; and any person interested who, at that time, re- 
 sides out of the state, or shall have been proceeded against by 
 publication, may, unless he actually appeared as a party, or was 
 personally summoned, file such bill within two years after such 
 sentence or order."* 
 
 There can be no suit brought to contest a will after the time 
 in which it may be contested as prescribed by statute, has ex- 
 pired.' 
 
 § 430. Manner of contesting the -will and the form of 
 the issue to be directed — 
 
 When a will has been admitted to probate and a party interested, 
 who was not a party to the probate, desires to contest the will, 
 he must file his bill in chancery, the form of which will be suf- 
 ficient if it avers in general terms that the writing of which pro- 
 bate has been received, is not the will of the decedent.' 
 
 When the bill has been filed and the proper parties are all be- 
 fore the court, the issue is sufficient if framed in accordance with 
 the direction of the statute.* 
 
 The form of this issue is ' 'to ascertain whether any, and if 
 any, how much, of what was so offered for probate, be the will 
 of the decedent.' 
 
 § 430a. Trial by jury in a court of equity and the aw^ard- 
 ing of damages therein — 
 
 A suit to contest the validity of a will is the only instance 
 wherein a court of equity awards a trial by jury as matter of 
 course, without reference to the state of the pleadings or proof. 
 But it is not the only instance, if a proper case has been made out 
 by the pleadings and proofs in the cause. Thus, a jury of twelve 
 freeholders will be impaneled to assess the damages in cases of 
 eminent domain.' So an issue will be directed, and a jury will 
 
 ■ Idem, \ 33. 
 
 ' Vaughan v. Doe, i Ivcigh, 316; Street v. Street, 11 Leigh, 498; Parker v. 
 Brown, 6 Gratt. 554. When these cases were decided, the limit of time was 
 seven years, but now it is only five in our state. 
 
 ' Malone v. Hobbs, i Rob. 346. 
 
 ■• Code, chap. 77, sec. 32; Coalter v. Bryan, i Gratt. 18. 
 
 5 Dower v. Church, 21 W. Va. 28, 47. « Ante, \ 267. 
 
574 EQUITY PRINCIPLES. 
 
 be impaneled to try it, in those cases in which such a conflict in 
 the evidence is created as to raise a doubt in the mind of the 
 chancellor as to how the cause ought to be decided on the proof. ^ 
 But in no case can the court properly direct an issue out of chan- 
 cery, to be tried by a jury, until the plaintiff by his evidence has 
 thrown the burden of proof upon the defendant.* And the 
 court's failure to award an issue will not be treated as error, 
 though the evidence presents a proper case for an issue, unless 
 the court was asked to direct an issue.' 
 
 But after the chancellor has c'irected an issue, which has been 
 tried by a jury, the verdict is only advisory; he is not bound by 
 it, and may enter up his own findings as the facts in the cause.* 
 
 As already seen, equity will not, as a rule, take jurisdiction of 
 a case merely involving the pure question of damages.* But 
 where equity has taken cognizance of a suit upon some proper or 
 well-recognized ground of equity jurisdiction, it will retain the 
 case for all purposes," and in order to do complete justice to the 
 parties litigant, if necessary to a full determination of the cause, 
 will ascertain and assess damages, either by its commissioner or 
 by an issue quantum damnificatus.'' 
 
 §431. W^ho may bring suit to contest a vrill — 
 
 The language of the statute as to who may file a bill in equity 
 to contest a will is, "a person interested," * who was not a party 
 to the probate thereof. The plaintiff must be "a person inter- 
 ested' ' within the meaning of this statute. 
 
 ' Fishburne v. Ferguson, 84 Va. 87, 4 S. E. Rep. 575; Powell v. Batson, 4 
 W. Va. 610; opinion of Paul, J., in Davis v. Henry, 7 W. Va. 715; Nease v. 
 Capehart, 8 W. Va. 95; Anderson v. Cranmer, 11 W. Va. 562; Jarrett v. Jar- 
 rett, II W. Va. 585; Ogle v. Adams, 12 W. Va. 213; Vanglider v. Hoffman, 
 22 W. Va. i; Pickens v. McCoy, 24 W. Va. 244; Hammond v. Foreman, 43 
 S. C. 264, 21 S. E. Rep. 3. 
 
 = Sands v. Beardsley, 32 W. Va. 596, 9 S. E. Rep. 925. But see ante, ? 43. 
 
 5 West Va. Bld'g Co. v. Saucer, 45 W. Va. 483, 31 S. E. Rep. 965. 
 
 * Seisler v. Smith (Ind.), 46 N. E. Rep. 993; Almonds v. Wilson, 75 Va. 
 613. 
 
 5 Ante, \ 3, p. 6. « Ante, § 350. 
 
 1 Nagle V. Newton, 22 Gratt. 814; Campbell v. Rust, 85 Va. 653, 8 S. E. 
 Rep. 664; Grubb v. Sharkey, 90 Va. 831, 20 S. E. Rep. 784; Carpenter v. 
 Osborne, 102 N. Y. 552, 7 N. E. Rep. 823, 827; 2 Beach, Mod. Eq. Jur-. §J 
 768, 630, 727, 538; Story, Eq. Jur., §g 794, 800; ante, \ 350a. 
 
 • Code, chap. 77, sec. 32. 
 
"wnis. 575 
 
 Within the purview of this law, ' 'a person interested' ' is one 
 having some pecuniary interest in the estate of the decedent 
 which is affected by the will, or of which he may be wholly de- 
 prived by the will, and which he cannot take, use or enjoy so 
 long as the probate of the will remains in effect.* 
 
 And this interest must be in esse at the time of the probate.' 
 
 § 432. Parties defendant in a suit to contest a will — 
 
 The plaintiff who brings a suit to contest a will, either to im- 
 peach or estabUsh its probate, should make all persons interested 
 defendants thereto, and especially should the heirs be parties 
 thereto.' 
 
 In Kincheloe v. Kincheloe,* Tucker, P., says: "Where it ap- 
 pears that all persons interested are not before the court, the 
 court should require the parties to be made, and if not made in 
 a reasonable time the bill should be dismissed; not on the merits, 
 but for defect of parties. The question of the validity of a will 
 is integral, and cannot be disposed of piecemeal. ' ' But in Dower 
 V. Church," where there was a defect of parties, the court holds 
 as a part of the law of the case, that where no objection is 
 made to this in the court below till after the issue of devisavit 
 vel non has been made up and tried and the jury has returned a 
 verdict against the will, which has been probated, those claiming 
 under the will cannot then be heard to object to the entering 
 of a decree in accordance with the verdict, because the heirs had 
 not been made parties. 
 
 » Dexter v. Codman, 148 Mass. 421, 19 N. E. Rep. 517; McDonald v. 
 White, 130 m. 493, 22 N. E. Rep. 599; Roberts v. Abbott, 127 Ind. 83, 26 
 N. E. Rep. 565; Fiske v. Pratt, 157 Mass. 83, 31 N. E. Rep. 712; Merril v. 
 Ralston, 5 Redf. (N. Y.) 220; Lafferty v. Lafferty, 5 Redf. (N. Y.) 326; Rob- 
 erts V. McMillen, 9 Lea (Tenn.), 571; Mclntire v. Mclntire, 64 N. H. 609, 
 15 Atl. Rep. 218; Re Langevin's Will, 45 Minn. 429, 47 N. W. Rep. 1133; 
 Montgomery v. Foster, 91 Ala. 613, 8 South. Rep. 349; Middleditch v. Will- 
 iams, 47 N. J. E. 585, 21 Atl. Rep. 290; Pranke v. Shipley, 22 Ore. 104, 29 
 Pac. Rep. 263. Under this rule, as laid down in the text, a widow cannot 
 contest a will because she is not bound by its provisions. McMechen v. 
 McMechen, 17 W. Va. 683. 
 
 ' McDonald v. White, supra. 
 
 3 Dower v. Church, 21 W. Va. 23; Eincheloe v. Kincheloe, 11 Leigh, 400; 
 Osborne V. Taylor, 12 Gratt. 117; Coalter v. Bryan, i Gratt. 18. 
 
 * II Leigh, 401. 5 21 W. Va. 13. 
 
576 EQUITY PRINCIPLBS. 
 
 § 433- W^ho to be plaintiff and who defendant in the is- 
 sue wrhen directed — 
 
 In the trial of an issue devisavit vel non, the logical order of 
 the rule prescribing who shall be plaintiff and who shall be de- 
 fendant is seemingly reversed. The proponent of the will who 
 is the defendant to the bill becomes the plaintiff in the issue 
 with the right to open and conclude the trial thereof before the 
 jury; and this is so, though the contestant may propose to ad- 
 mit on the record a prima facie case in favor of the will.' This 
 is a great hardship upon the contestant, because in the trial of 
 the issue devisavit vel non, the proponent of the will usually only 
 offers the will in evidence with proof of its due execution and the 
 competency of the testator at the time it was executed, and having 
 thus made a prima facie case rests; and then after the contestant 
 has'offered his evidence against the validity of the will, the pro- 
 ponent is permitted to offer other evidence to sustain the will, as 
 well as evidence in rebuttal.' 
 
 § 434. Contest of will, a proceeding inter partes — 
 
 The probate of a will in a proceeding ex parte is essentially a 
 proceeding in rem, and binds all the world.* But where a con- 
 test ensues and parties intervene to carry it on by plaintiff on one 
 side and defendant on the other, and it thus assumes the form of 
 a suit, the proceeding becomes one inter partes, and not one in 
 rem} It follows, therefore, that those who are not parties to a 
 suit brought to contest the validity of a will, are not bound by 
 the result thereof.' 
 
 ' Coalter v. Bryan, i Gratt. 18; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 
 Rep. 493. 
 
 ' Kerr v. Lunsford, supra; Runyan v. Price, 15 Ohio St. 6; Forney v. Per- 
 rell, 4 W. Va. 729. 
 
 3 Hardy v. Hardy, 26 Ala. 524; Telford v. Barney, i Greene (Iowa), 578; 
 Campbell V, Logan, 2 Bradf. (N. Y.) 42; Lay v. Kennedy, i Watts & S. 
 (Pa) 396; Holliday V. Ward, 19 Penn. St. 485; Scott v. Calvit, 4 Miss. 148; 
 Mills V. Spraggins, 3 Gratt. 555. 
 
 * Dickey v. McVann, 18 Ala. 425; Storey v, Storey, 120 111. 244; 11 N. E. 
 Rep. 209; Richardson v. Green, 9 C. C. A. (U. S. ) 565. 
 
 5 Holt et al. V. Lambert, 17 Ohio St. 375; Mears v. Mears, 15 Ohio St. 
 96; Dower v. Church, 21 W. Va. 23, 58. 
 
WILLS. 577 
 
 § 435- When a will contest is decided, the functions of 
 the suit are exhausted — 
 
 Inasmuch as a bill filed to impeach or establish a will is in 
 effect a form of probate proceeding under the guidance and di- 
 rection of the circuit court by means of a common law trial of 
 an issue directed by the equity court, the function of the suit is 
 exhausted after the question of the validity of the will has been 
 determined ; and if the will is declared invalid and null, it is not 
 competent for the court in that suit to proceed any further;^ as 
 for instance to establish another will which had not been offered 
 for probate though this was also asked in the bill by the plain- 
 tiffs, the devisees in such alleged will, and averred to have been 
 improperly destroyed ;- nor can the administration accounts of the 
 estate of the decedent be settled, nor his land sold nor the pro- 
 ceeds distributed among his heirs at law, nor his creditors con- 
 vened in such suit, after the will has been set aside.' And if in 
 such suit the will is sustained, the court cannot construe the 
 will.' 
 § 436. A will may be good in part and void in part — 
 
 A will need not necessarily stand or fall as a whole. This is 
 really implied from the form of the issue as prescribed by our 
 statute. But as to this matter we are not left to reason and 
 analogy. It has been expressly so decided, and laid down by the 
 text writers.* It is undoubtedly true that a will may be void in 
 part, and not in all its provisions; or it may be void as to one 
 legatee, and not as to others.* 
 
 § 437. Equity jurisdiction as to lost wills — 
 
 An examination of the authorities will show that equity has 
 long exercised its jurisdiction to establish lost, suppressed or de- 
 stroyed wills.'' 
 
 ■Coalter v. Bryan, i Gratt 18; Dower v. Church, 21 W. Va., 23; Coflfman 
 V. Hendrict, 32 W. Va. 119, 9 S. E. Rep. 65; Kerr v. Lunsford, 31 W. Va. 
 659, 8 S. E. Rep. 493; Couch V. Eastham, 27 W. Va. 796. 
 
 'Dower v. Church, supra. 'CoflFman v. Hendrick, supra. 
 
 'Kerr v. Lunsford, supra; Couch v. Eastham, supra. 
 
 5 Lyons v. Campbell, 88 Ala. 462; 7 South Rep. 250; 1 Redf. on Wills, 521, 
 citing Florey v. Plorey, 24 Ala. 241. 
 
 'i Redf. on Wills, 519. 
 
 'Buchannon v. Matlock, 8 Humph. (Tenn.) 390; s. c. 47 Am. Dec. 622; 
 Hall V. Gilbert, 31 Wis. 691; Bowen v. Idley, 6 Paige, 46. 
 
"578 BQUITY PRINCIPLES. 
 
 The only case that has been before our court, involving the 
 question of the power of a court of equity to set up a lost will, 
 is that of Dower v. Seeds,* in which the subject is examined at 
 considerable length by Greene, J. , who delivered the opinion of 
 the court. In this case the following conclusions are reached: 
 "A court of probate, unless forbidden to do so by a statute, may 
 admit to probate a will, which has been lost, suppressed or de- 
 stroyed; or such a will may be estabhshed by the decree of a 
 court of chancery upon a bill brought by the devisee or legatee 
 against the heir or distributees. In either case the order es- 
 tablishing the will should set forth its contents, that it was duly 
 executed by the testator, when he wqs of sound mind and dis- 
 posing memory, and by whom it was witnessed, and show that 
 it was attested in the manner required by law. The decree 
 should also direct this order including the will so established by 
 it to be recorded in the proper wiU book, which would be done 
 by recording a copy of the order of the probate court or a copy 
 of the decree of the chancery court, as the case might be. 
 
 Before a will, which has been lost, suppressed, or destroyed, 
 can be thus probated by an order of the circuit court acting as an 
 appellate probate court upon an appeal from an order of a county 
 court either admitting or refusing to admit such will to probate, 
 the court must, if requested by any party interested, direct an 
 issue of devisavit vel non to be tried by a jury'; and so too in a 
 chancery cause to set up such lost, suppressed or destroyed will, 
 before a decree can be rendered setting up such will, if either 
 party to the suit requests it, the court should direct an issue of 
 devisavit vel non to be tried by a jury." 
 
 This decision settles the question as to equity jurisdiction in 
 this state, and leaves the matter in no doubt whatever, and also 
 fixes the practice in such cases.* 
 
 §437a. The proof required in the establishment of a lost 
 will— 
 
 The order in which the evidence may be introduced in suits to 
 establish lost instruments, as in other cases, is in the discretion 
 of the court;' so that it is immaterial whether the loss of the 
 
 ' 28 W. Va. 113, decided in 1886. 
 
 ' For a full and exhaustive discussion of the subject see Thornton on Lost 
 Wills (1890). 
 ' Conoly V. Gayle, 61 Ala. 116. 
 
wnw. 579 
 
 will or its contents be first shown.' But no decree for its es- 
 tablishment can be entered without proof of its due execution/ that 
 it has been lost and cannot be produced for probate in the usual 
 manner,' and there must be sufi&cieut proof of its contents.* 
 The contents, however, may be shown by a single witness.' 
 
 ■ Idem. 2 Thornton on l,ost Wills, sec. 42. 
 
 ' Kaster v. Kaster, 52 Ind. 532; Thornton on Lost Wills, sees. 50-55. 
 < Matter of Johnson's Will, 40 Conn. 587; Thornton on Lost Wills, 
 spcs. 743-90. 
 
 s Matter of Page, 118 111. 576, 8 N. E. Rep. 852. 
 
,580 EQUITY PRINCIPLBS. 
 
 CHAPTER XLI. 
 EXCLUSIVE JURISDICTION. 
 
 ALIMONY. 
 
 ? 438. Origin and definition of alimony. 
 
 439. When alimony will not be allowed. 
 
 440. Allowance of alimony pendente lite. 
 
 441. When permanent alimony will be granted and the amount thereof. 
 
 442. Illustrative cases as'to the amount of alimony. 
 
 443. Decree in cases where alimony is allowed. 
 
 444. Alimony as a distinct subject of equity jurisdiction. 
 
 445. Alimony as to the husband. 
 
 § 438. Origin and definition of alimony — 
 
 To enter upon tlie history of the origin of alimony would not 
 be in keeping with the plan and scope of this work, and, there- 
 fore, it must suffice to state that it had its rise in the legal obli- 
 gation of the husband, incident to the marriage state, to main- 
 tain his wife in a manner suitable to his means and social 
 position.' 
 
 Permanent alimony is defined "to be such sum as is ordered by 
 the court to be paid to the wife by the husband for her sup- 
 port during the time she lives separate from him, or to be paid 
 by her late husband for her maintenance after divorce from the 
 marriage tie.'" 
 
 Money paid during the pendency of a suit for divorce or for 
 divorce and alimony under an order of court or under an order 
 made by the judge in vacation, for the maintenance of the wife, 
 or to enable her to carry on her suit, or to provide for the 
 custody and maintenance of the minor children during the 
 pendency of the suit, or to defend a suit brought by the husband 
 for divorce, is known as alimony pendente lite} It is also de- 
 
 » Harris v. Harris, 31 Gratt. 13; Green v. Green (Neb.), 34 L. R. A., at 
 page 117. 
 
 ' Green v. Green, supra. See opinion of court in Martin v. Martin, 33 W. 
 Va. 695, II S. E. Rep. 12. 
 
 ' For the statute authorizing alimony pendente lite, see Code, chap. 64, 
 sec. 9. 
 
ALIMONY. 581 
 
 fined as that allowance which the husband may be compelled to 
 pay to his wife to enable her to prosecute the suit for divorce or 
 separation, or to defend and answer where the proceedings are 
 instituted by him.^ 
 
 § 439' W'hen alimony will not be allowed — 
 
 If the wife leaves her husband without a good legal excuse 
 therefor, the courts will not grant her ahmony.^ Nor will the 
 wife be allowed alimony where, from her own fault, her husband 
 has abandoned her.' And the same is true where, after separa- 
 tion, the husband offers to receive her again into his house, and 
 to afford her suitable maintenance.* Neither will alimony be de- 
 creed where the marriage between the parties is void or invalid;* 
 nor after a divorce a vinculo matrimonii;^ nor will it be allowed 
 where the separate estate of the wife is larger than that of her 
 husband, and amply sufficient for her support.' 
 
 § 440. AUow^ance of alimony pendente lite — 
 
 What was said as to the refusal of alimony in the next pre- 
 ceding section relates to permanent alimony, and not to alimony 
 pendente lite. 
 
 "While in practice, it is usual, almost as a matter of course,' to 
 award the wife an allowance to enable her to conduct her suit 
 and also for her maintenance pending the sviit, it is not a matter 
 of absolute right in the absence of a statute so providing,' but 
 rests in the sound discretion of the court.'" 
 
 » 2 Am. & Eng. Enc. Law (2d ed.), 99. 
 
 » Martin v. Martin, 33 W. Va. 695, 11 S. E. Rep. 12. "Where a wife 
 leaves her husband without legal cause she is not entitled to alimony." 
 Martin v. Martin, supra; Carr v. Carr, 22 Gratt. 168. 
 
 » 2 Am. & Eng. Eric. Law (2d ed.), 97. « Idem, 97, 98. 
 
 5 Stewart v. Stewart, 34 W. Va. 524, 12 S. E. Rep. 736; Brown v. Brown, 
 00 Va. 000, 24 S. E. Rep. 238. 
 
 « Cralle v. Cralle, 79 Va. 182. 
 
 ' Myers v. Myers, 83 Va. 806, 6 S. E. Rep. 630. 
 
 • Wright V. Wright, i Edw. Ch. 61, 6 Law ed. 60, note; Osgood v. Osgood, 
 2 Paige Ch. 621, 2 Law ed. 1056, note; Wood v. Wood, 2 Paige Ch. 108, 2 
 Law ed. 833, note. 
 
 9 2 Am. & Eng. Enc. Law (2d ed.), loi. But see Milliron v. Milliron, 9 
 S. D. 181, 68 N. W. Rep. 286. 
 
 " Wass V. Wass, 42 W. Va. 460, 26 S. E. Rep. 440; Brown v. Brown, 00 Va. 
 000, 24 S. E. Rep. 238; Miller v. Miller, 92 Va. 236, 23 S. E. Rep. 232. 
 
582 EQUITY PRINCIPLES. 
 
 The amount to be allowed is also addressed to the discretion of 
 the court,' under all the circumstances of the case and with refer- 
 ence to the condition of the parties.' 
 
 The circuit court is clothed with the exclusive right to award 
 aMmsyay pendente lite, and the exercise of this discretion, which 
 is a very broad one,' will not be reviewed, unless it is made to 
 appear that it has been grossly abused;* but the allowance must 
 be made while the suit is in fieri, and not after an appeal has 
 been taken to the appellate court from a decree rendered in the 
 cause." And if pending an appeal the court below enters a de- 
 cree allowing alimony, and the amount is too small to appeal 
 from, it presents a proper case for a writ of prohibtion.' 
 
 There should be a prima facie case shown to the court before 
 asking for alimony pendente lite-' but it is presumed that with us 
 the issue of the summons and fiUng of the bill setting forth a cause 
 of action would constitute such showing, inasmuch as it should 
 be allowed without an examination of the merits of the case,' 
 and it is not refused because the husband's sworn answer denies 
 the allegations of the bill.' It should also appear to the court 
 that the wife is without adequate means to maintain herself and 
 to enable her to properly conduct her suit or defense, for when it 
 is shown that she has sufficient means for this purpose, alimony 
 
 ' ' 'Ordinarily, it is said, the wife ought to be allowed for temporary ali- 
 mony about one-fifth of the joint income, as just defined, and for permanent 
 alimony from one-half to one-third, two-fifths being no uncommon propor- 
 tion." I Bart. Ch. Pr. 315. 
 
 ' Wass V. Wass, supra,. ''Pees for prosecuting an appeal to the supreme 
 court from a decree against the wife in the circuit court will not be allowed 
 distinctively as alitaony pendente lite, but the court, in its discretion, will al- 
 low her a reasonable amount to enable her to carry on her suit." Miller v. 
 Miller, supra. 
 
 ' Gusman v. Gusman, 140 Ind. 433, 39 N. B. Rep. 918. 
 
 * Wass V. Wass, supra, in opinion of English, J.; Sellers v. Sellers, 141 
 Ind. 307, 40 N. E. Rep. 699. 
 
 s Cralle v. Cralle, 81 Va. 773. « Cralle v. Cralle, supra. 
 
 ? Harding v. Harding, 144 111. 588, 32 N. E. Rep. 206; Bish., Mar. & Div., 
 384, 406, 423. 
 
 " Harding v. Harding, supra; Osgood v. Osgood, 2 Paige Ch. 621, 2 Law 
 ed. 1056; Wilson v. Wilson, 10 Ga. 477; Wright v. Wright, i Edw. Ch. 62, 6 
 Lav/ ed. 60. 
 
 9 Harding v. Harding, supra; Osgood v. Osgood, supra; Wright v. Wright, 
 supra; Campbell v. Campbell, 73 Iowa, 432; Lotowitch v. Lotowitch, 19 
 Kan. 451. 
 
AI,IMONY. 583 
 
 pendente lite will not usually be allowed to her;' nor will it be 
 allowed where the husband has made ample provision for the 
 wife upon his separation from her.^ Where, too, the husband 
 and wife have been living apart for some years, the wife during 
 that time supporting herself, 2i!ixvaiao.y pendente lite may be denied.' 
 
 An additional prerequisite to a decree for temporary alimony 
 is that it must be shown that the husband is able to pay the 
 sum decreed;* though his poverty or reduced circumstances will 
 be insufficient to deny it, yet these matters will be considered in 
 fixing the amount; but it will not be denied because he has no 
 visible means of support, if he has ability to earn money or any 
 prospect of an income.' 
 
 The alleged misconduct of the wife and proof that she is partly 
 in fault, and even a charge of adultery against the wife, if denied 
 by her under oath, will not defeat an application for alimony 
 pendente lite} 
 
 The time of the allowance of alimony pendente lite is in the 
 discretion of the court, and may be made payable as the court 
 may direct;' but it should not be made payable to any one except 
 the wife herself.* While it is a very common practice to direct 
 the pajrment of the money to the wife or her attorney, there is 
 no authority for the payment of it to the latter.' Nor can he 
 make a valid contract for any portion of the alimony to be paid 
 to himself, as such a contract is contrary to public policy."* 
 
 In the case of Anderson v. Steger, cited in the foot-note. Cart- 
 wright, J., in the course of his opinion, says: "The allowance, 
 when made, is designed to meet all just and reasonable expenses 
 to which she (the wife) may be put, including the fees of officers 
 
 * Harding v. Harding, supra; McCarthy v. McCarthy, 137 111. 500, 33 N. 
 E. Rep. 550; Penningroth v. Penningroth, 71 Mo. App. 438; Hadden v. Had- 
 den, 36 Fla. 413, 18 So. Rep. 779; Kenemer v. Kenemer, 26 Ind. 330; Sellers 
 ▼. Sellers, 141 Ind. 305, 40 N. E. Rep. 699; 21 L. R. A. 310, brief of counsel, 
 at p. 311. 
 
 * 2 Am. & Eng. Enc. Law (2d ed.), 106. ' Idem. 
 
 * Idem, 107. It has been held that, where the husband asks for the di- 
 vorce, if he be unable to supply the wife with the means to make her de- 
 fense, he must abandon the suit. Idem, 107 and 108. 
 
 5 Idem, 107 and 108. « Idem, 108. ' Idem. 109. 
 
 « Anderson v. Steger, 00 111. 000, 50 N. E. Rep. 665. 
 » Anderson v. Steger, supra. 
 
 " Van Vleck v. Van Vleck, 21 App. Div. 272; Jordan v. Westennan, 6» 
 Mich. 170. 
 
584 BQtriTY PRINCIPLES. 
 
 and witnesses, taking depositions, expenses in attendance upon 
 court, and the services of her solicitors; and the fees of such 
 solicitor are on no different footing from any other expenses which 
 she may properly incur. The allowance is for her, and not for 
 the officers or witnesses, the commissioners who may take depo- 
 sitions, or the master who may perform services. . . . Any 
 motion for allowance under the statutes must be in her name, 
 and the allowance is to be made to her, and not to the party whom 
 she employs." The allowance should also include a sum for her 
 maintenance and support during the progress of the suit.' There 
 is no fixed rule as to the amount of alimony to be allowed to the 
 wife for her maintenance during the pendency of the suit;' but it 
 should be reasonable, having a due regard both to his own 
 means and her necessities.' 
 
 Alimony pendente lite should not include any sum for the sup- 
 port of minor children which are in the custody of the husband, 
 who is able and willing to support them,* and especially after the 
 court's refusal to award the custody of them to his wife.' 
 
 § 441. When permanent alimony will be granted and the 
 amount thereof — 
 
 "Where a divorce is granted to the wife, upon her application 
 therefor, permanent alimony generally follows, where the evi- 
 dence shows that she has no means of support or separate es- 
 tate.' So, too, "the circumstances must be very peculiar, indeed, 
 if any such case there should be, which, justifying a decree for 
 absolute divorce on behalf of the husband for willful desertion 
 of the wife, would at the same time warrant a decree in her be- 
 half, that he should out of his own estate maintain her as long 
 as she lived, although after divorce she should become the wife 
 of another.'' 
 
 Our statute provides that "upon decreeing the dissolution of a 
 marriage, and also upon decreeing a divorce, whether from the 
 
 ■ Code, chap. 64, sec. 9; Marsh v. Marsh, 14 N. J. Eq. 318, 82 Am. Dec. 
 253- 
 
 ' I^ynde v. Lynde, 4 Sandf. 373, 7 Law Ed. 1138. 3 Idem. 
 
 < Harding v. Harding, supra. s Mem. 
 
 « Campbell v. Campbell, 90 Ga. 687, 16 S. E. Rep. 960. For a very full 
 consideration of the subject of alimony and the circumstances under which 
 it will be granted, see the entire case of Campbell v. Campbell, just cited. 
 
 ' Harris v. Harris, 31 Gratt. 13. 
 
AI.IMONY. 5^5 
 
 bond of matrimony or from bed and board, the court shall make 
 such further decree as it shall deem expedient, concerning the 
 estate and maintenance of the parties, or either of them, and the 
 care, custody and maintenance of the minor children, and may 
 determine with which of the parents the children, or any of 
 them, may remain; and the court may, from time to time after- 
 wards, on the petition of either of the parties, revise or alter 
 such decree concerning the care, custody and maintenance of the 
 children, and make a new decree concerning the same, as the cir- 
 cumstances of the parents and the benefit of the children may 
 require; and whether the divorce be granted or not, if the parties 
 are living separate and apart from each other, the court may 
 make such order or decree concerning the care, custody and 
 maintenance of the minor children, or any of them, and may de- 
 termine with which of the parents the children, or any of them, 
 may remain, as to the court may seem proper, and the benefit of 
 the child or children may require. ' ' ' 
 
 It will be observed from the reading of this statute, that upon 
 decreeing a divorce, either from the "bond of matrimony" or 
 from "bed and board," the court may make such further order 
 "as it shall deem expedient concerning the estate and mainte- 
 nance of the parties, or either of them." But the principles de- 
 termining the allowance of alimony are the same in the one class 
 of divorces as in the other.' 
 
 This statute seems to commit the question of alimony, in all 
 cases where a divorce is granted, to the discretion of the court. 
 
 Notwithstanding the provisions of this statute which refer the 
 matter of alimony to the court's discretion, this discretion should 
 not be abused or exercised arbitrarily, but only in accordance 
 with the recognized principles and rules of law and practice ob- 
 taining in cases of this character.^ 
 
 ''Independent of statute, alimony has been allowed the wife 
 upon a divorce on the husband's complaint, under particular cir- 
 cumstances justifying it. And where, under other circum- 
 stances, an allowance would be denied, if the wife has contrib- 
 uted substantially to the joint property, her guilt should not be 
 
 ' Code, chap. 64, sec. 11. ' Harris v. Harris, 31 Gratt. 13. 
 
 ' See 2 Am. & Eng. Enc. Law (2d ed.), pp. 93, 99, 117-120, and authori- 
 ties cited. 
 
586 EQUITY PRINCIPI^ES. 
 
 further punished by a forfeiture of all interest therein, but an 
 allowance should be made to her.' 
 
 The amount of permanent alimony is a matter of sound dis- 
 cretion,' to be determined by the condition of the parties, and 
 particularly by the financial condition of the husband, his ability 
 to earn money, the amount of his property at the time, and his 
 annual income.' So, too, the wife's means and ability to earn 
 money are to be considered, and when it appears that she has 
 sufficient means and separate property to support herself in that 
 position in society to which she is accustomed, the court, as 
 a rule, will not be justified in making her an allowance as 
 alimony.* 
 
 § 442. Illustrative cases as to the amount of alimony — 
 
 In the following cases the amounts were declared reasonable, 
 and serve also to illustrate the principles we have already been 
 considering: Where the husband is of good business habits and 
 possessed of $3,800 worth of property at the date of divorce, an 
 allowance to the wife of $150 per annum is considered reason- 
 able;' but an allowance of $1,000 annually is not reasonable 
 where the husband's property consisted of two farms of 3,296 
 acres, only a comparatively small portion of which was cleared, 
 the residue being, unimproved, much of it wild mountain land, 
 the income being about $800 and the value of the property about 
 $30,ooo.« 
 
 An allowance of four hundred dollars a year to the wife, where 
 it appears that the husband is worth about ten thousand dollars, 
 consisting of real and personal property, that he is a capable 
 business man in good health, and that she has only about sev- 
 enty-five acres of land, yielding about one hundred dollars a 
 year, with a child to support born to her after the separation, is 
 not excessive.' 
 
 And seven hundred and fifty dollars per year is reasonable ali- 
 mony to the wife, who has obtained a divorce from the husband 
 
 ■ 2 Am. & Eng. Enc. Law (2d ed.), 119. ' Idem, 120. 
 
 ' Idem, 125; Myers v. Myers, 83 Va. 806, 6 S. E. Rep. 630; Bailey v. Bailey, 
 21 Gratt. 43. 
 
 * Myers v. Myers, supra. 
 
 5 Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12. 
 
 ' Heniger v. Heniger, 90 Va. 271, 18 S. E. Rep. 193. 
 
 ? Trapp V. Trapp, 20 Ky. Law Rep. 335, 46 S. W. Rep. 213. (Not in the 
 official reports.) 
 
AUMONY. 587 
 
 for inhuman treatment such as to endanger her life, where he 
 receives an annual salary of fifteen hundred dollars, and the cus- 
 tody of their two children is awarded to her.^ So is one thou- 
 sand dollars per year reasonable, where the husband's net income 
 is twenty-five hundred dollars annually, after paying all of his 
 personal expenses.' 
 
 And an allowance of thirty dollars per month to the wife, and 
 one hundred and fifty dollars as counsel fees rendered the wife 
 in a case wherein she was awarded a divorce on cross-bill, when 
 it is shown that the husband earns one hundred and twenty-five 
 dollars a month and owns land costing thirteen hundred and 
 fifty dollars, is not excessive.' Neither is one hundred and fifty 
 dollars per annum allowed to the wife as alimony excessive, 
 where the husband is of good business habits, and the owner of 
 three thousand and eight hundred dollars worth of property at 
 the date of the decree of divorce.* Nor is the allowance of three 
 thousand and five hundred dollars excessive, when made to a 
 wife who is nearly helpless, requiring the constant attention of 
 an assistant, and not likely to recover her health, her property 
 being less than two thousand dollars in value, while that of the 
 husband is worth not less than fourteen thousand dollars.* 
 
 But four hundred and fifty dollars out of less than fifteen hun- 
 dred dollars, the husband being over sixty years of age and un- 
 able to earn more than from three to five dollars a week; four 
 hundred dollars annually where the wife had separate property 
 amounting to three thousand dollars and that the husband was 
 worth twenty thousand dollars; and thirty thousand dollars, 
 when the husband was worth one hundred thousand dollars, 
 which had accumulated before the marriage, were all held ex- 
 cessive.* 
 
 § 443. Decree in cases where alimony is allowed— 
 
 When the ecclesiastical courts entered a decree for alimony, 
 whether temporary or permanent, its form always provided for 
 an allowance to be paid in installments at fixed periods.^ This, 
 
 ' Aitchison v. Aitchison, 99 Iowa, 93, 68 N. W. Rep. 573. 
 
 ' Elzas V. Elzas, 171 HI. 632, 49 N. E. Rep. m. 
 
 3 Anrand v. Aurand, 157 H'- 321, 4i N. E. Rep. 859. 
 
 * Cralle v. Cralle, 84 Va. 198, 6 S. E. Rep. 12. 
 
 5 Doolittle V. Doolittle, 78 Iowa, 691, 6 L. R. A. 187. 
 
 « 2 Am. & Eng. Enc. Law (2d ed.), 129, and notes. ? i Enc. PI. & Pr. 427. 
 
588 EQUITY PRINCIPI,ES. 
 
 too, is the practice iu our courts of chancery as a general rule, 
 and especially is this the case in the absence of statute law pro- 
 viding otherwise. But specific property or a gross sum may be 
 allowed by the consent of the parties, and a fair and bona fide 
 agreement in this regard will be adopted by the court as its de- 
 cree.^ The claim being a mere personal one on the husband, 
 the wife can have no lien on any specific property, without an 
 agreement therefor.' 
 
 As to the duration of the allowance the decree should provide 
 for its payment during the lives of the husband and wife, or so 
 long as they shall live separate.' 
 
 "Where permanent aUmony takes the form of a periodic 
 allowance, the decree usually directs that it shall run from the 
 date of the final decree, though sometimes it runs from the filing 
 of the bill, when this is just under the circumstances." * 
 
 ' Idem. "Where the court has a discretion in the matter, it seems to be 
 deemed a better plan to award an allowance, and not either a simi in gross 
 or specific property, unless there are special reasons why the latter should 
 be done, as to avoid further litigation, or where there is danger of the hus- 
 band delaying payment. McClung v. McClung, 40 Mich. 494; Williams v. 
 Williams, 36 Wis. 362; Ross v. Ross, 78 111. 402." Idem, 128. 
 
 ' Almond v. Almond, 4 Rand. 662, 668; Purcell v. Purcell, 4 H. & M. 
 
 507, 518. 
 
 The decree in the case of Purcell v. Purcell was to the effect following: 
 
 "That the defendant in the first suit should annually, on the first day of 
 October, pay to the plaintiff three hundred dollars for her comfort and 
 maintenance, until he shall restore her to the comforts of her bed and board, 
 and give satisfactory assurances of the enjo3Tnent thereof; that on the first 
 of October next the quarterly allowances are to cease; and liberty was re- 
 served to either party, at any time, to apply to the court to have an increase 
 or diminution of the said annual allowance, as circumstances may in future 
 make it proper; and the cross bill was dismissed; and it was ordered that 
 the costs of both suits be paid by the said Charles Purcell." 
 
 3 Martin v. Martin, 33 W. Va. 13; 11 S. E. Rep. 12, 14, in the opinion" of 
 the court. Francis v. Francis, 31 Gratt. 288. 
 
 < I Euc. PI. & Pr. 429, and authorities there cited. 
 
 "The continuance of alimony after the death of the husband, while the 
 wife remains unmarried, is strongly favored where a first wife, after twenty 
 years, during which one child was bom, and, by joint efforts, a large fortune 
 was accumulated, secures a divorce for her husband's misconduct." 
 Storey v. Storey, i I,. R. A. 321. See also Bun v. Bun, 10 Paige, Ch. 20, 
 4 Law Ed. 870. 
 
ALIMONY. 589 
 
 § 444« Alimony as a distinct subject of equity jurisdic- 
 tion — 
 
 On the question whether or not a court of equity has jurisdic- 
 tion to entertain an independent suit for alimony alone, being 
 the only relief sought by the bill, the courts of the United 
 States are not in harmony. It is said that by the apparent 
 weight of authority, in the absence of legislation to the contrary, 
 alimony should not be allowed in an independent suit in courts 
 of equity.' 
 
 Our statute' provides that "upon decreeing the dissolution of 
 a marriage, and also upon decreeing a divorce, whether from the 
 bond of matrimony or from bed and board, the court may make 
 such further decree as it shall deem expedient, concerning the 
 estate and maintenance of the parties, or either of them." This 
 statute would seem to negative the right to alimony in a suit 
 brought alone for that purpose, upon the principle of expressio 
 unius est exchisio alterius. But an examination of many well- 
 considered cases shows that this statute does not, by impUcation, 
 exclude a suit for alimony independent of a proceeding for 
 divorce.' 
 
 In Virginia it has been long held that a suit for alimony as an 
 independent action belongs to the jurisdiction of a court of equity, 
 as one of its inherent powers, and that the exercise of such juris- 
 diction does not depend upon statute.* 
 
 "Alimony," says an able author, "generally regarded as an 
 incident to a suit for divorce, may in Virginia be granted 
 independent of any such suit where the misconduct of the hus- 
 band drives the wife from her home, or he turns her out of 
 doors or perhaps wherever a divorce from bed and board or a 
 restoration of conjugal rights would be decreed."" 
 
 This question has not been decided in our state, but it has 
 
 ' 2 Am & Eng. Enc. Law (2d ed.), pp. 93, 94, citing many decisions /ra 
 and con. 
 
 ' Code, chap. 64, sec. 11. 
 
 ^ Edgerton v. Edgerton, 12 Mont. 122, 16 L. R. A. 94; Galland v. Galland, 
 38 Cal. 266; Earie V. Earle, 27 Neb. 277, 43 N. W. Rep. 118; Bueter v. Bueter, 
 I S. D. 94, 8 L. R. A. 562; Graves v. Graves, 36 Iowa, 310; Jamison v. 
 Jamison, 4 Md. Ch'y- 289; Wilson v. Wilson, 45 Cal. 399; Daniels v. Daniels, 
 9 Cal. 133; Price v. Price, 90 Ga. 244, 15 S. E. Rep. 774; Graves v. Graves, 
 SO Ohio St. 196, 33 N. E. Rep. 720. 
 
 « Almond v. Almond, 4 Rand. 662; Purcell v. Pm-cell, 4 H. &. M. 507-S"- 
 
 5 I Bart. Ch. Pr. 314. 
 
590 BQUITY PRINCIPI,ES. 
 
 been before our supreme court incidentally in Stewart v. Stewart," 
 where the court inclines in its opinion to the doctrine of the 
 right to maintain such independent suit in a court of equity. 
 
 Our own conclusion, from an examination of the authorities, 
 is, that upon reason and anology, courts of equity can maintain 
 an independent suit, for alimony, upon a bill filed for that pur- 
 pose alone.' 
 
 § 445. Alimony as to the husband — 
 
 Alimony is allowed the wife in recognition of the husband's 
 common-law liability to support her. Therefore, in the absence 
 of legislation readjusting domestic relations and allowing it, 
 there can be no corresponding liability on the wife's part to sup- 
 port her husband, and alimony cannot be granted him. In 
 several of the states, however, alimony, or an allowance from the 
 wife's estate in the nature of alimony, is allowed the husband by 
 statute.' 
 
 Our statute, as we have already seen, authorizes the court 
 upon a decree of divorce, to make such further decree, concern- 
 ing the estate and maintenance of the parties, or either of them, 
 as it shall deem expedient. 
 
 This statute may seem to imply that the court, could, in its 
 discretion, award alimony to the husband. But under a statute 
 of Nebraska, which provides: "A petition or bill of divorce, 
 alimony and maintenance may be exhibited by a wife in her own 
 name, as well as a husband; and in all cases the respondent may 
 answer such petition or bill without oath; and in all cases of di- 
 vorce, alimony and maintenance, when personal service cannot 
 be had, service by publication may be made as is provided by law 
 in other civil cases tmder the Code of Civil Procedure," the su- 
 preme court of that state decided that it was not authorized to 
 grant alimony or maintenance to the husband, to be paid from the 
 estate of the former wife.* 
 
 ^ 27 W. Va. 167, 172, 173. 
 
 ' For au exhaustive collection of the authorities bearing on both sides of 
 the question, see the briefs of counsel in the case of Edgerton v. Edgerton, 
 16 I«. R. A. 94, and 2 Am. & Eng. Enc. Law (2d ed. ) 93, 97. 
 
 ' 2 Am. & Eng. Enc. Law (2d ed.), 92. 
 
 * Greene v. Greene, 49 Neb. 546, 34 L. R. A. no. We here append a part 
 of the note to this case found on pp. 110-113 of 34 I<- R- A. "Where the title 
 to property derived through the husband has been placed in the wife's 
 
AI^IMONY. 591 
 
 Our conclusion is, upon principle and authority, that ali- 
 
 name, courts in granting a divorce have allowed the husband's claim to a 
 part of the same, and this on the ground of equity, and some on the con- 
 struction of statutes authorizing such relief; and some have denied such re- 
 lief where the equity was not established. The conduct of the parties in the 
 procurement of the title and treatment of each other, as well as statutes 
 which are mandatory or permissive, enters largely into the propriety of such 
 a decree. 
 
 "The claim of the husband against property held in the name of his wife 
 should properly be called an equity, though it has been denominated by 
 some courts a division of property, and by some alimony or a divorce of 
 property. Alimony, technically so called, as a support in favor of a husband 
 out of the wife's property without regard to its source, is generally denied; 
 but the tendency seems to be to place the husband and wife on an equality 
 on this question, as the rights and powers of a wife expand and the re- 
 spective rights and powers of the husband contract, and alimony has been 
 given to the husband in some cases. 
 
 "Most of the cases in this note, like the case of Greene v. Greene, are at- 
 tempts by the husband to obtain property held in the name of the wife on 
 the ground of the divorce. 
 
 "The case of Greene v. Greene holds that Neb. Comp. Stat., 1895, chap. 
 25, sec. 10, providing that a petition or bill for divorce, alimony and main- 
 tenance may be exhibited by the wife in her own name as well as by the 
 husband, does not authorize a decree for alimony and maintenance in favor 
 of the husband in an action of divorce, but was intended to allow the wife 
 to sue in her own name instead of by ' next friend.' 
 
 ' 'The husband claimed alimony, but the court held that there was no au- 
 thority under the statute for any allowance of alimony. This was a dictmn, 
 as it was not allowed in the decree, and the appeal by the wife was on 
 another question. 
 
 "The lower court allowed his claim for property, the title of which was 
 in his wife, and this was affirmed because the record did not contain all of 
 the evidence. 
 
 "A decree for divorce for fault of the wife gave to the husband land held 
 in her name, but the title to which was derived through him. Under Wis. 
 Rev. Stat., sec. 2364, providing for a division of the husband's property, 
 and so much of the estate of the wife as shall have been derived from the 
 husband, and sec. 2372, providing that no judgment of divorce shall affect 
 the right of the wife in her separate property, 'except as provided in this 
 chapter.' It was said that the vnte's separate property cannot be touched, 
 unless the property in her name can be properly said to have been de- 
 rived from her husband. Gallagher v. Gallagher, 89 Wis. 461. 
 
 "And a decree of divorce in favor of a wife directed her to convey to her 
 husband land which she entered with the proceeds of property which she had 
 sold belonging to him, and she was allowed to retain land which he had 
 entered in her name with money which she had brought to him on her 
 marriage. Stewartson v. Stewartson, 15 111. 146. 
 
 "So on a divorce for fault of the husband, he was decreed one-half of the 
 
592 EQUITY PRINCIPLES. 
 
 mony cannot be allowed to the husband in the absence of a 
 
 real estate, the title of which was held by her. And Wash. Code, sec. 2007, 
 providing for an equitable division of property on a divorce, applies to her 
 separate property. Webster v. Webster, 2 Wash. 417. 
 
 "So, on a divorce for favdt of the husband, he was awarded one-fifth of 
 the income of slaves during his life, and a share in the land, which slaves 
 and land had been conveyed to a trustee for the wife by the husband sub- 
 sequent to the marriage, although Tex. Stat. Hart's Dig., art. 849, authoriz- 
 ing a division of the property on a divorce, provided that nothing shall be 
 construed to compel either party to divest him or herself of the title to real 
 estate or slaves. The court said this case is an exception to the rule. The 
 wife derived her property from her husband. By law he was entitled to the 
 management of the separate property of the wife, and to support out of its 
 proceeds. The husband in this case had stripped himself of every thing, 
 and this decree does not infringe the title to the slaves. Fitts v. Fitts, 14 
 Tex. 443. 
 
 "In Meldrumv. Meldrum, 15 Colo. 478, 11 L. R. A. 65, where the wife had 
 by protestations of love and affection obtained a large amount of property 
 by gift from her husband through fraud and deceit, and thereafter procured 
 a divorce from him, in a subsequent suit by him to set aside the deed the 
 conveyance was set aside and he was not precluded by the divorce proceed- 
 ings in the county court, the court saying, there is no question of alimon}' 
 here, the wife alone can maintain such an action, and the husband was 
 not required to set up in his cross-complaint in divorce this cause of 
 action. 
 
 "In Oliver v. Oliver, 5 Ala. 75, where a husband asked on appeal for 
 an allowance out of the estate of the wife for having paid off her debts be- 
 fore marriage to him, and a divorce was granted to her for this fault, it was 
 held he could not have such affirmative relief without a cross-bill; but 
 it was said that a cotirt of chancery could properly refuse relief, unless the 
 complainant should do equity. In this case, after the divorce, she released 
 all her interest in a fund settled by the husband on her as separate estate, 
 and the decree of the chancellor was then affirmed. 
 
 "And on a divorce a vinculo matrimonii, thereafter, 'by the agreement of 
 the parties,' it was further decreed that C. should have the custody of the 
 three elder children, and that for the support and education of the children 
 C. should receive one-third of the rents and profits to which Mrs. C. was en- 
 titled. Cheever v. Wilson, 76 U. S. 108, 19 L. ed. 604. 
 
 "In Wetmore v. Wetmore, 5 Or. 469, it was said that Or. Civil Code, sec. 
 495> provides that whenever a marriage shall be declared void or dissolved, 
 the party at whose prayer such decree shall be made shall in all cases be 
 entitled to the undivided one-third part in his or her individual right in fee 
 of the whole of the real estate owned by the other at the time of such 
 decree, in addition to the further decree for maintenance provided for in 
 section 497. 
 
 "In Small v. Small, 42 Iowa, iii, it was said that under Iowa Code, sec. 
 2226, the court may order either party to pay the clerk a sum of money for 
 
ALIMONY. 593 
 
 Statute expressly authorizing it.^ It is said that in some states a 
 certain portion of the wife's property, in the natiu-e of alimony, 
 is given to the husband, while in others no distinction is appar- 
 ently made between the laws governing alimony to the wife and 
 alimony to the husband.^ 
 
 the separate support and maintenance of the adverse party and the children, 
 and to enable such party to prosecute or defend the action. 
 
 "But where a husband asked for a decree of land as alimony, it was 
 held that an action for alimony ran not be maintained by the husband 
 against the wife. Somers v. Somers, 39 Kan. 132." 
 
 ' Groth V. Groth, 69 111. App. 68. = i Am. and Eng. Enc. Law, 478. 
 
 .^8 
 
594 BQUITY PRINCIPI<ES. 
 
 CHAPTER XLII. 
 ANNULMENT OF MARRIAGE. 
 
 J 446. The annulment of marriage and when decreed. 
 
 447. As to jurisdiction to annul marriage. 
 
 448. The decree of annulment. 
 
 449. Suits to affirm marriages. 
 
 § 446. The annulment of marriage and vrhen decreed — 
 
 The annulment of marriage may be defined to be the judgment 
 or decree of a court of competent jurisdiction declaring a formal 
 marriage null and void, because the contract was entered into 
 under fraud or duress, or because of miscegenation, or because 
 prohibited by law for the reason that either of the parties has a 
 former husband or wife then living, or because prohibited by law 
 on account of the consanguituty or affinity existing between the 
 parties, or because either of the parties at the time of the mar- 
 riage was insane, or incapable from physical causes of entering 
 into the marriage state, or was then under the age of consent, or 
 because the plaintiff was then in such a state of intoxication as 
 not to know what he was doing.' 
 
 It is proper to state here that a suit to annul a marriage pre- 
 supposes a formal marriage, and one which on the record is prima 
 fade a lawful marriage.' 
 
 ' Ridgely v. Ridgely, 79 Md. 298, 25 L. R. A. 800; Code, chap. 64, sec. i; 
 Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. Rep. 736; Wightman v. 
 Wightman, 4 John. Ch. 343, i Law Ed. 862, and note; Scott v. Schufield, 5 
 Paige, 43, 3 I/aw Ed., note; l,eavitt v. Ivcavitt, 13 Mich. 452; McClung v. 
 Terry, 21 N. J. Eq. 225; Tefift v. Tefft, 35 Ind. 44; Waymire v. Jetmore, 22 
 Ohio St. 271; Carris v. Carris, 24 N. J. Eq. 516; Bassett v. Bassett, 9 Bush. 
 (Ky.) 699; Seilheimer v. Seilheimer, 40 N. J. Eq. 412; Cummington v. 
 Belcherton, 4 Iv. R. A. 131, 21 N. E. Rep. 435. 
 
 = Cummington v. Belcherton, supra. By a prima facte lawful marriage, 
 is meant that there is presented by the license and ceremony what appears to 
 be a valid marriage, but, by reason of its having been entered into by par- 
 ties whose intermarriage is, forbidden by law, the marriage is, in fact, un- 
 lawful. 
 
 "Where a marriage is absolutely void" (that is, without any decree so de- 
 claring), " a suit to annul it is not necessary; but such a suit will lie, and is 
 
ANNULMBNT OF MARRIAGE. 595 
 
 Every presumption is made in favor of the legality of mar- 
 riage, so that, where one is adjudged insane and he afterwards 
 marries, the law presumes that such marriage, made after the 
 adjudication of insanity, is a lawful marriage.' And a marriage 
 invalid at the time for want of mental capacity of one of the 
 parties thereto, may be ratified and made valid afterwards by any 
 acts or conduct which amount to a recognition of such mar- 
 riage.' 
 
 A party is not entitled to have a marriage annulled on the 
 ground of duress, where the only evidence of duress is the fact 
 that, having been arrested on the charge of seduction, he mar- 
 ried the defendant to avoid a prosecution;' nor can the annulment 
 of an invalid marriage be decreed upon the application of a third 
 party on the ground that he is the lawful husband of the woman 
 by a prior marriage, which is still in force.* Nor can the valid- 
 ity of a marriage be determined collaterally; it must be in a pro- 
 ceeding brought directly for that purpose.' 
 
 Where a person, insane at the time of her marriage, after her 
 return to a lucid interval refused to ratify or consummate it, and 
 filed her bill to annul it, the court decreed the marriage null 
 and void, and the parties absolved from its' obligation.* So, where 
 
 advisable, in order to have the invalidity of the marriage determined judi- 
 cially." Tiffany's Persons and Domestic Relations, 35. See Stewart v. Van- 
 dervort, 34 W. Va. 524, 12 S. E. Rep. 736. 
 
 ' Castor V. Davis, 120 Ind. 231; 22 N. E. Rep. no. 
 
 ' Prine V. Prine, 36 Fla. 676, 34 L. R. A. 87. See the elaborate note to 
 this case in 34 L. R. A. 
 
 3 Copeland v. Copdand, 00 Va. 000, 21 S. E. Rep. 241. 
 
 * Ridgely v. Ridgely, 79 Md. 298, 25 I/. R. A. 800. "Undoubtedly, in the 
 eye of tiie law, marriage is a civil contract, differing from other contracts in 
 the circumstance that it cannot be rescinded by the mere consent of the par- 
 ties. Being then a contract, it seems to follow that, where it has been pro- 
 cured by fraud or duress, it may be set aside by a court whose inherent juris- 
 diction gives it authority to annul any ordinary contract procured in the 
 same way; provided the application be promptly made and before a consum- 
 mation of the marriage by voluntary cohabitation. Clark v. Field, 13 Vt. 
 460; Robertson v. Cole, 12 Tex. 356. In general, either party may com- 
 plain, but obviously in this as in other instances the party guilty of the fraud 
 cannot allege and rely on his own misconduct to avoid a contract procured 
 by that means. Stewart, Mar. & Div. ?? 46, 150, 151; Brown, Div. 8f Al. 
 360." Ridgely V. Ridgely, J^i^ra. 
 
 5 Setzer v. Setzer, 97 N. C. 252, i S. E. Rep. 558. 
 
 ' Wightman v. Wightman, 4 Johns. Ch. 343, i Law. Ed. 862. 
 
596 EQUITY PRINCIPLES. 
 
 a marriage is unlawful and void a^ initio, being contrary to the 
 law of nature, as between persons ascendants or descendants in 
 the lineal line of' consanguinity, or brothers and sisters in a col- 
 lateral line, the court will declare such a marriage, in a suit in- 
 stituted for that purpose, null and void.^ Also, where the par- 
 ties were white persons, and the complainant was charged by the 
 oath of the defendant as the putative father of her bastard child, 
 and the complainant thereupon, believing the child to be his, 
 married her to obtain discharge from the proceedings against 
 him under the bastardy act; and he subsequently ascertained that 
 the child was a mulatto, and that the defendant knew that fact 
 at the time she swore it to be his, she then having been delivered 
 and seen the child, it was held that the complainant was entitled 
 to a decree declaring the marriage contract void on the ground 
 that his consent was obtained by fraud.' 
 
 § 447. As to jurisdiction to annul marriage — 
 
 When a marriage has been entered into on the ground of fraud 
 or duress a court of equity has the inherent power to annul it.' 
 
 Our statute provides that the circuit court on the chancery 
 side thereof shall have jurisdiction of suits for annulling or 
 affirming marriages, or for divorces.* It further provides that no 
 such suit shall be maintainable unless the parties, or one of them, 
 shall have resided in the state one year next preceding the time 
 of bringing the suit.' 
 
 § 448. The decree of annulment — 
 
 A decree annulling a marriage must be entered in a suit 
 brought for that purpose.* 
 
 It is not proper to enter snch a decree in a suit brought to obtain 
 a divorce a mensa et thoro? 
 
 When a marriage is solemnized in this state,' and grounds ex- 
 ist for its annulment as set out in the statute,' such marriage is 
 not void only from the time it is so declared by a decree of di- 
 vorce or nullity."" 
 
 ' Idem. ' Scott v. Schufeldt, 5 Paige, Ch. 42, 3 Law. ed. 6ao. 
 
 3 Ridgely v. Ridgely, 97 Md. 298, 25 L. R. A. 800. 
 
 • Code, chap. 64, sec. 7. s Idem. 
 
 • Brown v. Brown, 00 Va. 000, 24 S. E. Rep. 238, 239. ^ Idem. 
 
 • West Virginia. » Code, chap. 64, sec. r, '" Idem. 
 
ANNUI,MBNT OF MARRIAGE. 597 
 
 Marriages, however, between white persons and negroes, or 
 when one of the parties had a husband or wife then living, per- 
 formed before the Code of 1868 took efEect, are absolutely void 
 without any decree of court so declaring.^ 
 
 § 449. Suits to affirm marriages — 
 
 Our statute provides that "when a marriage is supposed to be 
 void, or any doubt exists as to its vaHdity, for any of the causes 
 mentioned in the first section in this chapter, either party may 
 institute a suit for annulling or affirming the same, and upon 
 hearing the proofs and allegations of the parties, the court shall 
 render a decree affirming or annulling the marriage, according to 
 the right of the case. In every such case, and in every other 
 such case where the validity of a marriage is called into ques- 
 tion, it shall be presumed that the marriage is valid, unless the 
 contrary be clearly proven. ' ' ' 
 
 ' Stewart v. Vandervort, 34 W. Va. 524, 12 S. E. Rep. 736. 
 ' Code, chap. 64, sec. 4. 
 
598 EQUITY PRlNCIPtBS. 
 
 CHAPTER XLIII. 
 CREDITORS' BILLS. 
 
 i 450. Origin, definition and classification of creditors' bills. 
 
 451. Who may file a creditors' bill. 
 
 452. Parties to creditors' bills. 
 
 453. When creditors' bill may be maintained. 
 
 454. What creditors' bill should show on its face. 
 
 455. AVhen creditors' bill suspends other suits. 
 
 456. What property reached by creditors' bill. 
 
 457. Order of reference in creditors' suits. 
 
 458. Duties of commissioners to whom creditors' suit is referred, and 
 
 proceedings before him. 
 
 459. Effect of convening creditors before a commissioner. 
 
 460. Lien of judgment upon debtor's real estate. 
 
 461. The docketing of judgments and the effect thereof. 
 
 462. As to the application of the statute of limitations in creditors' suits. 
 
 463. As to the limitation of the right to enforce judgment and other 
 
 liens. 
 
 464. As to priority of judgment and other liens. 
 
 465. When error to direct sale of land. 
 
 466. When creditors' bill will not be dismissed. 
 
 467. As to power and jurisdiction of a court of equity on a creditors' bill. 
 
 468. The decree in a creditors' suit. 
 
 § 450. Origin, definition and classification of creditors' 
 bills— 
 
 This branch of equity jurisdiction is called into exercise at al- 
 most every term of the circuit court by nearly every chancery 
 lawyer at its bar. Its exercise is not dependent upon statute,* 
 but it is inherent in the court of equity independent of positive 
 law,' though our statute has somewhat enlarged this branch of 
 inherent jurisdiction.' 
 
 In its most comprehensive sense, a creditors' bill, is a bill 
 filed by one or more creditors, to enforce the collection of a debt 
 
 • Arnold v. Casner, 22 W. Va. 444; Vicksburg & M. R. Co. v. Phillips, 64 
 Miss. 108, 1 So. Rep. 7. 
 ' a Beach, Mod. Jur., §? 883-888. a Arnold v. Casner, supra. 
 
creditors' bii,i<s.. 599 
 
 or claim under circumstances which impede or render impossible 
 its collection by the ordinary process of law.^ 
 
 In our practice creditors' bills may be thus classified: 
 
 First. Those filed to enforce judgment and certain trust or 
 mortgage Uens against the lands of the debtor. 
 
 Second. Those filed against the estates of decedents for a dis- 
 tribution of the assets of the estate among the lien and general 
 creditors thereof. 
 
 Third. Those filed to set aside fraudulent conveyances, and 
 conveyances by insolvent debtors attempting to create preferences 
 among creditors. 
 
 § 451. Who may file a creditors' bill — 
 
 A single creditor of either a living or deceased debtor may file 
 a creditors' bill in his own name;' or several persons having dis- 
 tinct judgments against a common debtor may join as plain- 
 tiffs in the same suit;* and one judgment creditor may file such 
 bill to enforce his own judgment lien without making other judg- 
 ment creditors parties, and a reference may be had and all 
 creditors thus convened.* But the more usual and better prac- 
 
 • 5 Enc. PI. & Pr. 391; Baugher v. Eichelberger, 11 W. Va. 217; Cire v. 
 Hartman, 84 Va. 251, 4 S. E. Rep. 621. 
 
 ' Arnold v. Casner, 22 W. Va. 444; Dunfee v. Childs, 45 W. Va. 155, 30 
 S. E. Rep. 102; Howard v. Stephenson, 33 W. Va. 116, 12 S. E. Rep. 66. 
 "But if all the judgment-creditors are made parties to such suit informally, 
 by being called by publication before a commissioner under a decree of the 
 court to present their judgments, then this court would not reverse a decree 
 ordering sale of the lands of the debtor or distribution of the proceeds of 
 such sale merely because the record disclosed that some of the judgment 
 creditors had not been made formal defendants, who ought to have been so 
 made, unless it appears that objection was made to the rendering of such de- 
 cree on this ground in the court below, and before such decree was rendered. 
 If in such a bill the creditor should fail to sue on behalf of himself and all 
 other judgment-creditors, the court should afford to all judgment-creditors 
 an opportunity to have their judgments audited before a commissioner by 
 directing a publication to be made calling upon them to present their judg- 
 ments for auditing; and in such case the appellate court would regard such 
 bill as a creditors' bill, the same as if the plaintiff had sued on behalf of him- 
 self and all other judgment-creditors except those made defendants." Grove 
 V. Judy, 24 W. Va. 297. 
 
 3 Brown v. Bates, 10 Ala. 432; Conro v. Port Henry Iron Co., 12 Barb. 
 
 (N. Y.) 27. 
 
 * Dunfee v. Childs, supra. 
 
60O EQUITY PRINCIPLES. 
 
 tice, is for the plaintiff to sue on behalf of himself and other 
 creditors of the same class as himself.' 
 
 It is scarcely necessary to state that the bill may be filed or the 
 suit brought by any person who has a right to resort to a court 
 of equity to reach the property of another, to subject it to the 
 payment of any debt or claim, where the ordinary legal remedy 
 , is insufficient or unavailing.' Thus an administrator may file 
 such bill to enforce a judgment obtained by him against persons 
 who are distributees of the estate;' also a special receiver to en- 
 force the lien of a judgment obtained by him;* and a purchaser 
 of land under a void decree, whose money has been applied upon 
 liens on the land valid against the owner of the land so sold.* 
 But such a bill cannot be maintained by one person for the use 
 of another, where the judgment at law, upon which the creditor's 
 suit is brought, was so obtained for such other person, unless 
 such other person is a party to the bill;' nor can such a bill be 
 maintained by one whose debt has been established in another 
 creditors' suit by the confirmation of a commissioner's report 
 made therein.^ 
 
 The rule as to the misjoinder of plaintiffs in a creditors' bill 
 does not apply as it does in other suits, so that the instances are 
 exceedingly rare, if they exist at all, in which a demurrer to such 
 a bill will be sustained on a ground of this sort.' 
 
 § 452. Parties to creditors' bill — 
 
 As we have already seen,' a single creditor may bring a 
 creditors' suit without joining other creditors in the bill as 
 plaintiffs or naming them therein as defendants. But while this 
 may be done and the suit converted into a general creditors' bill 
 by referring the cause to a commissioner and convening all the 
 
 * Arnold v. Casner, supra. 
 
 ' Leonard v. Smith, 34 W. Va. 442, 12 S. E. Rep. 479; Beverly v. 
 Rhodes, 86 Va. 415, 10 S. E. Rep. 572; Hale v. Home, 21 Gratt. 130; 5 Enc. 
 PI. & Pr. 531-535 and note; Moore v. Bruce, 85 Va. 139. 
 
 3 Wyatt V. Thompson, 10 W. Va. 645. 
 
 * Howard v. Stephenson, supra. 
 
 5 Hull V. Hull, 35 W. Va. 155, 13 S. E. Rep. 49. 
 
 « Kellam v. Sayre, 30 W. Va. 198, 3 S. E. Rep. 589; Grove v. Judy, 24 W. 
 Va. 294. 
 ' Saunders v. Griggs, 81 Va. 506. » Colgin v. Redman, 20 Ala. 650. 
 
 » Ante, \ 451; Dunfee v. Childs, 45 W. Va. 155, 30 S. E. Rep. 102. 
 
creditors' bills. 6oi 
 
 creditors by notice duly published, still our court holds that ' 'in 
 a proceeding in chancery by a judgment creditor to subject the 
 real estate of his debtor to the payment of his judgment lien it 
 is the duty of the plaintifE to make all the lien creditors of the 
 debtor known to him, and which are disclosed by the judgment 
 lien docket, or the records of the courts of the counties in which 
 the lands sought to be sold are situated, parties to the suit; and 
 where there are liens by trust deeds the trustees in such deeds 
 must be made formal parties before any sale of the debtor's lands 
 can be ord^ed, and such trustees cannot be made informal 
 parties by publication."' And unless the beneficiaries and 
 trustees in deeds of trust are made formal parties to the suit, 
 they are not bound by the decrees entered therein by reason of 
 the publication of the general notice to lien holders under our 
 statute.' 
 
 And our statute provides that in every such suit ' 'all persons 
 having liens on the real estate sought to be subjected by judg- 
 ment or otherwise shall be made parties, plaintiff or defendant, 
 or if the number of such persons exceeds ten, the suit may be 
 brought by any one or more of them for the benefit of himself 
 and such other lien holders as will come in and contribute to the 
 expenses of the suit." ' 
 
 ■ McMillan v. Hickeman, 35 W. Va. 705, 14 S. E. Rep. 227; Neily v. Jones, 
 16 W. Va. 626, syl. 8; Bensiner v. Fell, 39 W. Va. 448, 19 S. E. Rep. 545; 
 Camahan v. Ashworth (Va.), 31 S. E. Rep. 65. 
 
 "If all the judgment creditors are not made parties to such a suit either 
 formally or informally, and this is disclosed in any manner by the record, 
 the appellate court will reverse any decree ordering the sale of the lands or 
 the distribution of the proceeds of such sale." Neily v. Jones, supra. 
 
 See also Feamster v. Tyree, 21 W. Va. 83; Bilmer v. Sherman, 23W. Va. 
 
 657. 
 ^ Marshall v. Hall, 42 W. Va. 641, 26 S. E. Rep. 300. 
 
 3 Code, chap. 139, sec. 7. 
 
 "No decree for the distribution of the proceeds of such real estate shall be 
 made until a notice to all persons holding liens on the real estate of the judg- 
 ment debtor be posted and published, under a decree of the court, as here- 
 inafter provided. Such notice shall be suflScient if it be in form or effect as 
 follows: 
 
 Notice to lien holders. 
 
 To all persons holding liens by judgment or otherwise on the real estate, or 
 any part thereof, of A. B. : 
 In pursuance of a decree of the circuit court of county, made in a 
 
6o2 BQUITY PRINCIPI<ES. 
 
 Where a creditors' suit is pending, a lien creditor has a right 
 to be made a plaintiff upon a proper petition filed in the suit for 
 such ptu^rase,' and to have an order made in the cause directing 
 such a petitioner to be made a party," and process as to any new 
 parties brought before the court by reason of such petition duly 
 issued thereon.' 
 
 Petitions filed in a creditors' suit by new parties must have 
 process against all parties that may be affected thereby; but if 
 the petitioners seek to enforce liens, and an order to convene the 
 lien holders has been entered, the liens set forth in the petitions 
 may be presented to the commissioner without such process.* 
 
 And the assignor and assignee of a judgment may be made co- 
 plaintiffs in a suit to enforce the lien thereof against the debtor's 
 lands.' And there are two certain classes of suits of this charac- 
 ter in which certain well-defined rules as to parties apply and gov- 
 ern, which should be carefully noted and observed in the prepara- 
 tion of these bills, and especially is this important as to the mat- 
 ter of certain defendants to these bills. 
 
 The general rule as to defendants to these suits may be stated 
 to be, that where it appears to be necessary to a safe and proper 
 decision of the cause between the debtor and any lien holder that 
 such lien holder should be a formal party to the bill, the court 
 may and will require him to be made such; or where there is any 
 one else so interested in the subject-matter of the bill that there 
 
 cause therein pending, to subject the real estate of the said A. B. to the sat- 
 isfaction of the liens thereon, you are hereby required to present all claims 
 held by you and each of you against the said A. B., which are liens on his 
 real estate, or any part of it, for adjudication, to me, at my oflSce in the 
 
 county (or city, town or village, as the case may be) of , on or before 
 
 the day of . 
 
 Given under my hand, this day of . 
 
 C. D., Commissioner. 
 
 This notice may be published either before or after the sale of the real 
 estate, so that the publication be made prior to the distribution of the pro- 
 ceeds of the sale. McNeel's Ex'rs v. Auldridge, 34 W. Va. 748, 12 S. E. 
 Rep. 851. 
 
 ' Kane v. Mann, 93 Va. 239, 24 S. E. Rep. 938; Jackson v. Hull, 21 W. Va. 
 601. 
 
 ' The Piedmont & Arlington Ins. Co. v. Maury, 75 Va. 508. 
 
 3 Morgan v. Morgan, 42 W. Va. 542, 26 S. E. Rep. 294. 
 
 ♦ Dunfee v. Childs, 45 W. Va. 155, 30 S. E. Rep. 102. 
 
 s Neely v, Jones, 16 W. Va. 627. 
 
CREDITORS' BII,I<S. 603 
 
 cannot be a complete adjustment of the cause or a proper decree 
 of sale in his absence, he must be a formal party to the suit.^ 
 Thus, in illustration of this principle, where there are liens by 
 trust deeds on the real estate sought to be sold under a creditors' 
 bill, the trustees therein must be formal parties;' so, too, those 
 holding prior liens for purchase-money,' trust creditors,* and the 
 heirs at law of the decedent when the ancestor's land is sought to 
 be sold," and also the personal representative when the suit has 
 been brought by a creditor of such decedent,' and likewise the 
 assignor of a judgment held by the plaintiff and the alienee of 
 land belonging to the judgment debtor when the judgment was 
 rendered;' but remainder- men are not necessary parties to a bill 
 to subject a life estate to the lien of a judgment;* nor in a cred- 
 itors'suit to settle an estate is it proper practice to join as de- 
 fendants therein the debtors of the estate, unless some independ- 
 ent ground of equity jurisdiction is made to appear, such as a 
 transfer to them of property in fraud of plaintiff's rights;' and 
 in a suit by a vendor to enforce a vendor's lien, other lienors 
 having judgment liens on the land ought not to be made parties.^" 
 Neither are the stockholders of a corporation proper parties to 
 a bill by a creditor, on behalf of himself and all other creditors 
 who choose to join, alleging the insolvency of the corporation 
 and asking that its property be administered as a trust fund for 
 the benefit of its creditors, where no relief is asked against the 
 stockholders." 
 
 ' Smith V. Parsons, 33 W. Va. 644, 11 S. E. Rep. 68; Dickinson v. Rail- 
 road Co., 7 W. Va. 390; White v. Kennedy, 23 W. Va. 22; Kanawha Val. 
 Bank v. Wilson, 29 W. Va. 645, 2 S. E. Rep. 768; Tabb v. Hughes, (Va.) 3 
 S. E. Rep. 148; Laidley v. Hincheman , 3 W. Va. 423; Hoffman v. Shields, 4, 
 W. Va. 490; Bilmeyer v. Sherman, 23 W. Va. 656. 
 
 ' Bilmeyer v. Sherman, supra; McCoy v. Allen, 16 W. Va. 724. 
 
 3 Dickinson v. RaUroad Co., 7 W. Va. 390; Marshall v. Hall, 42 W. Va. 641; 
 26 S. E. Rep. 300. 
 
 * Laidley v. Hincheman, 3 W. Va. 423; McCoy v. Allen, supra. 
 
 5 Kanawha Val. Bank v. Wilson, 29 W. Va. 645, 2 S. E. Rep. 768. 
 
 ' McDowell V. Cochran, 11 111. 31. 
 
 7 Preston v. Aston, 85 Va. 104, 7 S. E. Rep. 344. 
 
 ' Moore v. Bruce, 85 Va. 139, 7 S. E. Rep. 195; News v. Bass, Brown & 
 Co., 92 Va. 383. 
 
 9 Wilson V. Wilson, 93 Va. 546, 25 S. E. Rep. 596. 
 
 " Moreland v. Metz, 24 W. Va. 19. 
 
 " Bristol Iron & Steel Co. v. Thomas, 93 Va. 396, 25 S. E. Rep. no. 
 
6o4 EQUITY PRINCIPLES. 
 
 § 453- When creditors' bill may be maintained — 
 
 One of the first essential requisites to the maintenance of a 
 creditors' bill, as a general rule, is that the plaintifE must have a 
 lien upon the property which he seeks to subject to his debt or 
 claim.' Thus, under a bill filed by general contract creditors, 
 asking the court to administer the trust created by a general as- 
 signment of their debtor for the benefit of creditors, the court 
 has no jurisdiction to subject property not included in the 
 assignment, and on which the plaintiffs have acquired no 
 lien.* And if the suit be to enforce the lien of a judgment, 
 the judgment must be a valid one, creating a binding and sub- 
 sisting lien.' 
 
 If, however, the bill is filed against the estate of a decedent 
 for the settlement of the estate and for an accounting of the 
 assets thereof and their distribution among the creditors of the 
 decedent, a judgment is not necessary to its maintenance.* Nor 
 is a judgment or other lien necessary to maintain a creditor's bill 
 by one who brings a suit to set aside a conveyance made to hin- 
 der, delay or defraud creditors.' 
 
 Under our practice, by virtue of the Code of 1868,* a judgment 
 lien could be enforced at any time in a court of equity, without 
 reference to the question whether or not the debtor had personal 
 property or estate out of which the judgment might be made by 
 execution.'' But under our present statute* the lien of a judg- 
 ment can only be enforced in a court of equity after a due return 
 of an execution, showing by the return thereon that no property 
 
 ' Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S. E. Rep. 874; Johnson 
 V. Riley, 41 W. Va. 140, 23 S. E. Rep. 698; Preston v. Colly, 117 111. 477, 4 
 N. E. Rep. 375; Winslow v. Iceland, 128 111. 304, 21 N. E. Rep. 588; Comp- 
 ton V. Patterson, 28 S. C. 152, 5 S. E. Rep. 270; Hopkins v. Joice, 78 Wis. 
 443, 47 N. W. Rep. 722; 2 Beach, Mod. Eq. Jur., ? 898; Spindle v. Fletcher, 
 93 Va. 186, 24 S. E. Rep. 910. 
 
 " Spindle v. Fletcher, 93 Va. 186, 24 S. E. Rep. 910. 
 
 ' Johnson v. Parrotte, 46 Neb. 51, 46 N. W. Rep. 363. 
 
 <Tate V. Liggart, 2 Leigh, loi; Stephenson v. Taverners, 9 Gratt. 398; 
 Beverly v. Rhodes, 86 Va. 415, 10 S. E. Rep. 572; Robinson v. Allen, 85 Va. 
 721, 8 S. E. Rep. 835. 
 
 5 Guggenheimer v. Lockridge, supra; Code, chap. 133, sec. 2. 
 
 * Chap. 139, sec. 8. 
 
 ' Peck V. Chambers, 8 W. Va. 210; Marling v. Robrecht, 13 W. Va. 440. 
 
 • Acts, 1891, chap. 95. 
 
creditors' bii,i^. 605 
 
 could be found from which such execution could be made;^ unless 
 no execution or fieri facias has issued on such judgment within 
 two years from its date.' But this statute, requiring the issue 
 and return of a fieri facias unsatisfied before a chancery suit to 
 enforce the hen of a judgment can be maintained, does not apply 
 to suits pending when the statute took effect.^ 
 
 Inasmuch as the officer receiving a writ oi fieri facias is not re- 
 quired to hold it throughout the time the writ has to run, but 
 may properly return it before the return day,' it seems that a suit 
 to enforce a judgment hen might properly be brought after the 
 proper return indorsed on the execution, though before the end of 
 the return day.' But, while the execution may be returned before 
 the expiration of the return day so as to authorize the bringing 
 of a suit to enforce the lien of the judgment, it must be done 
 upon the responsibility of the sheriff and by reason of his ina- 
 bility to find property whereon to levy, and not by the direction 
 of the plaintiff." 
 
 § 454. What creditors' bill should show on its face — 
 
 Without going into the details and formalities of the allega- 
 tions which should be made in a creditors' bill, it must suffice to 
 state that the bill must set forth such facts, from which it can be 
 made to appear that the aid of a court of equity is required to 
 give the reUef sought.' 
 
 If the suit is by a general creditor,' the debt should be prop- 
 erly described and show that it is due and payable at the time of 
 suit brought;' and if, upon a judgment, the court wherein it was 
 
 'Code, chap. 139, sec. 7; Winslow v. Leland, 128 111. 304, 2i S. E. Rep. 
 588; Dunfee v. Childs 45 W. Va. 155, 30 S. E. Rep. 102. 
 
 ' Idem. 
 
 3 Burns v. Hays, 44 W. Va. 503, 30 S. E. Rep, loi. 
 
 « Findlay v. Smith, 42 W. Va. 299, 26 S. E. Rep. 370. 
 
 5 Newton v. Wade, 43 W. Va. 283, 27 S. E. Rep. 244; Smith on Receiver- 
 ships, 253, and authorities there cited. 
 
 ' Dnrand v. Gray, 129 HI. 9, 21 N. E. Rep. 610; Sctieubert v. Honel, 152 111. 
 313, 38 N. E. Rep. 913. 
 
 7 5 Enc. PI. & Pr. 556. 
 
 ' A general creditor with us cannot maintain a creditors' bill except in the 
 second and third classes of such bills. As to these classes, znde ante, I 450. 
 See Dishman v. Davidson (Ky.), 39 S. W. Rep. 515; Guggenheimer v. Lock- 
 ridge, 39 W. Va. 457, 19 S. E. Rep. 874; Grosvenor v. Athens, 6 Ohio, 100. 
 
 9 5 Enc. PI. & Pr. 556. 
 
6o6 EQUITY PRINCIPI.es. 
 
 rendered, the date and amount and the facts showing it to be 
 still valid and subsisting, should be averred,' and that execution 
 had issued thereon, giving the date thereof and of its return, as 
 well as also showing that it had been returned, "no property 
 found," or that no execution issued within two years of the date 
 of the judgment.' 
 
 It is usual and proper in bills of this character to describe in a 
 general way the property sought to be subjected to the pajTnent 
 of the debt;' and if the rents, issues and profits will not pay the 
 debt within a reasonable time (under our statute,* five years), it 
 is our practice to allege it in the bill. And, from the opinion of 
 our supreme court in a recent case,' it is advisable to aver that 
 the land described or mentioned in the bill is all the land owned 
 by the debtor, and, as just stated, that the rents, issues and 
 profits thereof will not pay the debjs against it within five yews.* 
 And the bill tnay call for an accounting of the debtor's personal 
 estate.' 
 
 § 455- W^hen creditors* bill suspends other suits — 
 
 When a creditors' suit has been brought and an order of refer- 
 ence made therein to a commissioner, to report upon the liens, 
 their extent and priorities existing upon the property liable 
 thereto, such order operates a suspension of all other suits pend- 
 ing, for the administration of the debtor's assets;' and such an 
 order of reference may be made in the cause first ready for hear-- 
 ing, although it may not be the first suit instituted.' 
 If several suits are pending by different creditors, the court 
 
 ' Idem, 562. 
 
 • Idem, 563, 564; Dnnfee v. Childs, supra. 
 
 3 Holsberry v. Poling, 38 W. Va. 186, 18 S. E. Rep. 485; Brown v. John 
 V. Perrell Co., 74 Fed, Rep. 764. 
 
 • Code, chap. 139, sec. 7. 
 
 5 Newlon v. Wade, 43 W. Va. 283, 27 S. E. Rep. 244, 
 
 • Under our statute as formerly existing this was unnecessary. Hill v. 
 Morehead, 25 W. Va. 429; Rose v. Brown, 11 W. Va. 122. 
 
 ' New V. Bass, 90 Va. 383, 23 S. E. Rep. 747. 
 
 « Bilmeyer v. Sherman, 23 W. Va. 657, syl. 6; Paxton v. Rich, 85 Va. 378, 
 7 S. E. Rep. 531, I L. R. A. 639; Stephenson v. Tavemers, 9 Gratt. 398; 
 I^aidley v. Kline, 23 W. Va. 565. 
 
 9 Bilmeyer v. Sherman, supra; Stephenson v. Tavemers, supra; Laidley 
 V. Kline, supra. 
 
CREDITORS' BIU^. 607 
 
 will order the proceedings in all the suits but one to be stayed, 
 and will require the several parties to come in under the decree 
 in said suit, so that only one account of the estate may be neces- 
 sary.^ And if a creditor, with knowledge that a decree of refer- 
 ence in another creditors' suit has been made, brings a separate 
 suit for his own claim, he will be compelled to pay the costs, and 
 his suit may be dismissed, especially where the suit is brought 
 with full knowledge that another suit of the same character is 
 pending in which a decree of reference has been entered.* And 
 it is held by our court of appeals, in Foley v. Ruley," that when a 
 suit under section seven, chapter one hundred and thirty-nine. 
 Code, 1891, has been begun by one judgment creditor for himself 
 and all other leinors to enforce the lien of a judgment on land, no 
 other lien holder can sue for the same purpose; and if he does, 
 the pendency of the first suit may be pleaded in bar and dismissal 
 of the second suit. 
 
 But the pendency of an action by a creditor to have the estate 
 of a deceased partner administered for the benefit of separate 
 creditors, and in which a decree for an account has not been ren- 
 dered, will not bar an action to administer the partnership prop- 
 erty for the benefit of the partnership cdeditors;* and while it is 
 sought to enforce a vendor's lien, a separate suit may be brought 
 for that purpose, where the holder thereof is not a party to the 
 creditors' bill.' 
 
 A decree of reference does not operate to suspend an action at 
 law already brought in which the judgment, when obtained, will 
 be entitled to share in the benefits of the decree entered in the 
 creditors' suit.' 
 
 It is the settled rule of practice, not only with us, but else- 
 where in this country, that when a creditors' bill is filed, no 
 one who is a party thereto can bring an action at law against 
 his debtor, upon his claim so as to obtain judgment thereon.' 
 
 • Stephenson v. Tavemers, supra. > 
 
 ' Idem; Kent v. Cloud, 30 Gratt. 550; Saunders v. Griggs, 81 Va. 506. 
 
 3 43 W. Va. 513, 27 S. E. Rep. 268. 
 
 4 Robinson v. Allen, 85 Va. 721, 8 S. E. Rep. 935. 
 
 5 Turstal v. Wishers, 86 Va. 892, 11 S. E. Rep. 565; Benson v. Snyder, 42 
 <V. Va. 223, 24 S. E. Rep. 880. 
 
 « Paxton V. Rich, supra, But see Rhodes v. Amsinch, 38 Md. 345. 
 ' Paxton V. Rich, i L. R. A. 639, note. 
 
6o8 EQUITY PRINCIPI,ES. 
 
 § 456. What property reached by creditors' bill — 
 
 Kvery specie of property belonging to the debtor may be 
 reached by a creditors' bill, and his equitable assets and choses 
 in action which cannot be reached by an execution.^ 
 
 It is laid down by high authority that the following property 
 may be reached by a creditors' bill and sold under a decree of the 
 court: Seats in stock exchanges;'' patents for inventions;' stock 
 in corporations and joint stock companies;* all equitable assets, 
 such as a mechanics' lien and the debt thereby secured, a vendor's 
 lien, legacies and the debtor's distributive share in the estate of a 
 decedent though such estate be unsettled,' a widow's unassigned 
 dower, equities of redemption,' and property held upon result- 
 ing and constructive trusts.'' 
 
 Property fraudulently transferred and property substituted or 
 exchanged therefor and the funds arising from its sale by the 
 fraudulent grantee, may be reached by creditors' bill;' also an 
 annuity given a widow under the will of her husband in lieu 
 ef dower and the payment of which has been made a charge 
 upon land;' property held in express trust for the benefit 
 of the debtor,"* unless held for the mere personal support 
 of the debtor," ©r exempt from liability to the payment of 
 debts by the instrument creating the trust;^* so, too, lands 
 conveyed in consideration that the grantees will pay all the 
 debts of the grantor, while the property remains in possession 
 of the grantees.^' 
 
 1 2 Beach, Mod. Eq. Jnr., i 925. 
 
 » 5 Enc, PI. & Pr. 440-442. 
 
 3 Idem, 443. 
 
 * Idem, 443. 
 
 ' I^ang V. Brown, 21 Ala. 179; Caldwell v. Montgomery, 8 Ga. 106. 
 
 ' Doheny v. Atlantic Dynamo Co., 41 W. Va. i, 23 S. E. Rep. 525. But 
 in the absence of fraud, a simple contract creditor cannot subject an equity 
 of redemption to sale until he has acquired a lien thereon in some manner 
 provided by law. Johnson v. Riley, 41 W. Va. 140, 23 S. E. Rep. 698. 
 
 ' 5 Enc. , PI. & Pr. 449-451. As to property held in express trust, see 5 Enc. 
 PI. & Pr. 454-457, and authorities and notes there referred to. 
 ' Idem, 457-458. 
 
 9 Degraw v. Classon, 11 Paige, 136, 5 Law. ed. 84. 
 
 ■» Graff V. Ponnett, 31 N. Y. 9. 
 
 '■ Campbell v. Foster, 35 N. Y. 361. 
 
 " Post, \ 567. 
 
 13 Vamneter v. Vamneters, 3 Gratt. 148. 
 
creditors' bii,i^. 609 
 
 And it can be laid down as a universal rule that where property 
 can be reached by execution and sold thereunder, it cannot be- 
 come the subject of a creditors' bill.^ 
 
 § 457. Order of reference in creditors' suits — 
 
 Where the pleadings and proofs in a cause clearly show the 
 liens, their extent and order of priority, a reference to a commis- 
 sioner to report thereon is wholly unnecessary." But as a general 
 rule, as we have already seen,' when suit to enforce judgment 
 Hens is brought, there should be a reference of the cause to a 
 commissioner to report upon the liens and their priorities, and 
 usrially it is error to decree a sale of the property without 
 doing so.* But in a suit brought to set aside a fraudulent 
 conveyance, and subject the property to the payment of the 
 debts of the grantor's creditors, there need be no reference of 
 the cause to a commissioner to report upon the liens and their 
 priorities.' 
 
 As we have already seen in a former chapter, there can be no 
 sale of the decedent's lands to pay his debts, until there has been 
 a reference to a commissioner and a settlement of the personal 
 
 ■ 5 Enc, PI. & Pr. 459, 460. 
 
 - Anderson v. Nagle, 12 W. Va. 98; Bock v. Bock, 24 W. Va. 586. "Where 
 the bill alleges that there are but two lienors, one of whom is plaintiff and 
 the other a defendant, upon real property, the amount of such liens, and 
 such lienors are deed-of-trust creditors, and the persons giving the deeds of 
 trust are parties, and none of the parties controvert the allegations of the 
 bill in this respect, or if said allegations are admitted, it is not essentially 
 necessary for the court to refer the cause to a commissioner to ascertain 
 and state the liens, if any, upon the property embraced in the deeds of 
 trust, unless the court sees satisfactorily otherwise that there are other liens 
 on the property. And where the credits, to which the said lienors' debts, 
 or any of them, are justly subject, are but few and are not controverted, 
 or are admitted by the parties in interest, whether they are all stated in 
 the bill or not, it is not essentially necessary for the court to make such 
 reference to a commissioner, but the court may in its discretion in such 
 cases, ascertain the true amount of such lien debts after deducting the just 
 credits, and decree accordingly the sale of the incumbered property for the 
 payment thereof." Weinberg v. Temple, 15 W. Va. 829, 831, syl. 5. 
 
 ' Judgments and Decrees, ante, § 288. 
 
 • Ante, Judgment and Decrees, ? 288; Marling v. Robrechtj 13 W. Va. 
 440; Scott V. Ivuddington, 14 W. Va. 387. 
 
 5 Bart V. Timmons, 29 W. Va. 441, 2 S. E.Rep. 780. 
 
 39 
 
6lO EQUITY PRINCIPI,BS. 
 
 accounts of the estate and a report thereon showing an actual 
 existing necessity for such sale.' 
 
 There can be no reference in- a suit in equity to a commis- 
 sioner until the plaintiff has made out a prima facie case where 
 the bill is denied by an answer;" because it is improper to order 
 an account merely to establish the allegations of the plaintiff's 
 bill.' But where there has been no other defense to the case 
 than a demurrer to the bill, which has been overruled and a 
 rule given the defendant to answer, the plaintiff may have the 
 cause rieferred to a commissioner without waiting for the answer, 
 when the order of reference does not adjudicate the principles 
 of the cause.* 
 
 § 458. Duties of commissioner to -whom creditors' suit is- 
 referred, and proceedings before him — 
 
 Inasmuch as there can be no decree for the distribution of the 
 proceeds of the sale of real estate entered in a suit of this 
 character until after the publication of notice to lien holders, 
 the commissioner to whom the cause is referred before proceed- 
 ing to take his account of the liens and their priorities upon and 
 against the real estate of the debtor, should post and publish 
 under the decree of the court committing the cause to him what 
 is known as "Notice to lien holders," as provided by our statute. *^ 
 
 "This notice shall be published once a week, for four con- 
 secutive weeks, in some newspaper printed in the county, or if 
 none be printed therein, in some newspaper of general circula- 
 tion in the county, and posted at the front door of the court 
 house of such county at least four weeks before the day men- 
 tioned in the notice. The commissioner to whom the cause is. 
 referred by such decree shall, as soon as possible, after said 
 notice is published and posted as aforesaid, or served in such a 
 manner as the court may order, proceed to ascertain and report all 
 the liens on the real estate or any part thereof of the judgment 
 
 • Chap. XV, \ 109, note, citing Hart v. Hart, 31 W. Va. 688, 8 S. E. Rep.. 
 562. 
 
 » Neely v. Jones, 16 W. Va. 626. 
 
 ' Livey v. Winton, 30 W. Va. 554, 4 S. E. Rep. 451; Ohio River R. Co.,, 
 35 W. Va. 481, 14 S. E. Rep. 142. 
 
 * Foley V. Ruley, 43 W. Va. 513, 27 S. E. Rep. 268. 
 
 5 Code, chap. 139, sec. 7. The form of notice as prescribed by statute has. 
 already been given in a note to a former section." Ante, \ 452, p. 601. 
 
creditors' bii,i<. 6ii 
 
 debtor, the holders of such liens, the amount due to each, 
 and the priorities thereof, and such other matters and things as 
 the court by its decree may direct, and the same proceedings 
 shall be had on such reports as in other suits in chancery. ' ' * 
 
 And when a cause is referred to a commissioner to take and 
 report an account of the liens and priorities against the real 
 estate sought to be subjected thereto, it is usual to provide in 
 the decree of reference that notice of the time and place of taking 
 the account be pubUshed in the manner required by law.' 
 
 The pubhcation of the notice is complete on the fourth issue 
 of the paper containing it, if it be published in the paper once 
 in each successive week, though the four weeks have not actually 
 elapsed between the date of the first and last publications.' 
 
 When the court directs in the decree the publication of this 
 notice, it is not necessary that the court should prescribe in the 
 order that such pubhcation shall be equivalent to personal service 
 of notice on the parties or any of them. * 
 
 In the execution of a decree of reference, the commissioner 
 shall, when required by the decree (and this is always required 
 so far as we have been able to observe in our practice) , give the 
 parties interested reasonable notice of the time and place of 
 taking his account in the cause;' but the publication of the usual 
 notice to lien holders of the time and place of taking the account 
 obviates the necessity of a personal service upon the parties to 
 the suit.' 
 
 Under our law as it now exists, as construed by our supreme 
 court in Newlon v. Wade,' before "the court can decree a sale 
 of a judgment debtor's property to pay the judgment liens 
 thereon, the full amount of property subject thereto must be 
 ascertained, and it must appear to the court that the rents and 
 profits thereof will not pay the judgments within five years. 
 Nor does it devolve upon the judgment debtor to show such to 
 be the case, but it is the duty of those seeking the sale of the 
 land to show the necessity therefor, and it is the duty of the 
 commissioner to ascertain and report all the real estate of the 
 judgment debtor liable to the payment of judgments against him, 
 
 » Code, chap. 139, sec. 7. ' Code, chap. 129, sec. 4. 
 
 3 Robrecht v. Marling, 13 W. Va. 440. * Robrecht v. Marling, supra. 
 
 5 Livesay v. Peamster, 21 W. Va. 83, 99, 100. 
 * Marling v. Robrecht, supra. 1 43 W. Va. 283, 27 S. E. Rep. 244. 
 
6l2 BQUITY PRINCIPI<ES. 
 
 and the report should show on its face the discharge of this duty, 
 and not simply report the real estate mentioned in the bill. The 
 records of the county and all other means, even to the testimony 
 of the judgment debtor, may be resorted to by him to ascertain 
 the truth." And the commissioner must report this fact, though 
 it is necessary to embrace the debtor's lands, in [counties other 
 than the one in which suit is brought.^ 
 
 The report must also indicate the order of the priority of the 
 liens of different rank on the land sought to be subjected,* and 
 this omission in the report may be availed of for the first time 
 in the court of appeals.' 
 
 It is scarcely necessary to observe that the commissioner may 
 take depositions touching the matters referred to him.* 
 
 Under our law and practice, any and every lien holder may 
 present and prove his claim or claims before the commissioner, 
 which he has against the judgment debtor, and have the same 
 allowed by the commissioner.* Any creditor interested in the 
 subject-matter of the suit may appear before the commissioner 
 and contest the claim of any other creditor, either in whole or in 
 part.* And in a case involving a settlement of the accounts of a 
 decedent's estate, the creditors of such estate may appear before 
 the commissioner and contest the claims of each other and claims 
 barred by statute.' 
 
 ' Kane v. Mann, 93 Va. 239, 24 S. B. Rep. 938. 
 
 » Camahanv. Ashworth (Va.), 31 S. E. Rep. 65. ^Idem. 
 
 * Scott V. I/uddington, 14 W. Va. 387. 
 
 5 Code, chap. 139, sec. 7. 
 
 ' Peamster v. Withrow, 9 W. Va. 296; Woodyard v. Polsley, 14 W. Va. 
 211. 
 
 ' Woodyard v. Polsley, supra. "If the statute of limitations had not been 
 specially pleaded in the cause, and had not been relied on before the com- 
 missioner, and the commissioner failed to recognize the statute, or disre- 
 garded it, and no exception was indorsed upon the report for that reason, 
 the appellate court will consider the statute of limitations out of the case, 
 although upon its face the report shows that some of the claims allowed by 
 the commissioner were barred by the statute. 
 
 ' 'Where a commissioner, under an order of reference to state the account 
 of the debts of an intestate, has reported debts that are prima facie barred 
 by the statute of limitations, and the report is excepted to for that reason, 
 unless it appear upon the face of the report, or from the evidence before the 
 commissioner, that the claim had in some legal mode been taken out of the 
 statute, the exception should be sustained by the court below, unless for 
 good reason shown the court should recommit the report to the commis- 
 
CREDITORS' BH,I<S. 613 
 
 § 459. Effect of convening creditors before a commis- 
 sioner — 
 
 Our laws provide that, after a cause has been referred to a 
 commissioner and the notice to lien holders has been duly posted 
 and published, the report of the commissioner confirmed and a 
 decree for the sale of the real estate has been entered and for the 
 distribution of the proceeds among the several lien holders who 
 have appeared and proved their hens and claims, according to 
 their several priorities, the claim of any lien holder who has not 
 appeared and presented his claim to the commissioner, as re- 
 quired by the notice, shall be barred, except as to any surplus 
 remaining of the proceeds of sale after the payment of the claim 
 presented and proved and by the court confirmed, provided such 
 claim shall be proved before final decree, in such manner as the 
 court shall direct.* 
 
 This statute has been construed by the supreme court on more 
 than one occasion, and in Bensimer v. Fell,* the following princi- 
 ples are announced: "A judgment for a debt in favor of A. 
 against B. is conclusive, not only between the parties, but even 
 as to strangers, to establish the existence and the amount of the 
 liability, and strangers can only impeach it for fraud or col- 
 lusion. 
 
 "A decree under section seven, chapter one hundred and 
 thirty-nine. Code, 1887, upon a report of a commissioner after 
 notice to lien holders, adjudging liens on the lands of a debtor, is 
 conclusive as between the various lienors proving liens, though 
 not formal parties, as to the existence and amount of their debts, 
 for the purposes of that cause as to the lands of the debtor; and 
 if there be a personal decree against the debtor for such liens not 
 merely because of the statute, but on general principles of law, 
 the decree would be conclusive generally as between not only the 
 creditor and debtor, but also conclusive as between the various 
 lienors, as to the existence and amounts of their respective 
 
 debts. 
 
 "Any lienor holding a lien against the judgment debtor con- 
 
 sioner, to hear proof of such circumstances as would take the claim out of 
 
 the statute. 
 
 "It is the duty of the personal representative to rely upon the statute of 
 limitations in behalf of legatees and distributees, and also to protect cred- 
 itors " Idem; Weidenbaugh v. Reed, 20 W. Va. 588. 
 
 ' Code, chap. 139, sec. 7- ' 34 W. Va. 791, 12 S. E. Rep. 1078. 
 
6l4 EQUITY PRINCIPLES. 
 
 stituting a lien on his land, not proving his lien in such proceed- 
 ing, would be thereby barred from sharing in the proceeds of the 
 sale of land under the decree, except in the surplus remaining 
 after the payment of the liens decreed, though not a formal 
 party. But a debt secured by a deed of trust would not be so 
 barred, unless the trustee and and cestui que trust be formal 
 parties. They must still in such suit be made formal parties, 
 under section seven, chapter one hundred and thirty-nine, as 
 found in the edition of the Code issued in 1887, under chapter 
 one hundred and twenty-six, Acts, 1882. 
 
 "While the debt of a party who ought to, but does not, prove 
 his lien in such proceeding, is barred, as above stated, from par- 
 ticipation in the proceeds of the sale, as a lien, yet the debt is 
 not, as a personal debt against the debtor, barred merely from 
 such failure. 
 
 "Nor is a lien on the land of the judgment debtor, created not 
 by him, but by a former owner of the land, barred as to such 
 land by failure of the owner to prove his lien therein, but, to bar 
 him for failure to do so, he must be made a formal party. This 
 is the case even though the holder of such lien proved in the case 
 another lien on the land created by the judgment debtor him- 
 self." 
 
 In another case subsequently decided, the court in construing 
 this statute, speaking through Brannon, J., who delivered the 
 opinion, says: "I think all specific lienors, such as vendors 
 holding liens by executory contracts or by reservation in a deed, 
 attachment liens, liens by mortgage, legal or equitable, or 
 legacies charged by will, must be made formal parties, and if 
 not made such parties, they are not bound by a convention of 
 Uenors by publication of notice to lien holders, under section 
 seven, chapter one hundred and thirty-nine of the Code."^ Nor 
 is this statute,intended to apply to equitable trusts." 
 
 But creditors who file their claims before a commissioner in such 
 suit, although not formal parties to the bill, become informal 
 parties to the suit, and are as effectually bound by the decrees 
 entered therein, as if they had been made parties to the bill and 
 served with process.' 
 
 » Benson v. Snyder, 42 W. Va. 223, 24 S. E. Rep. 881. See also Bensimer 
 V. Fell, 35 W. Va. 15, 19 S. E. Rep. 545. 
 " Marshall v. Hall, 42 W. Va. 263, 26 S. E. Rep. 300. 
 3 Bilmeyer v. Sherman, 23 W. Va. 656. 
 
creditors' bilIvS. 615 
 
 f 460. Lien of judgment upon debtor's real estate — 
 
 Our statute declares, ' 'every judgment for money rendered in 
 this state heretofore or hereafter, against any person shall be a 
 lien on all real estate of or to which such person shall be pos- 
 sessed or entitled at or after the date of such judgment, or; if it 
 was rendered in court, at or after the commencement of the term 
 at which it was so rendered."^ 
 
 This statute embraces not only judgments at law, but also de- 
 crees in chancery for the pasmient of money." The lien of a 
 judgment extends to lands in which the debtor has but an equit- 
 able title, with no deed therefor;' to lands in the hands of an as- 
 signee of an executory contract in writing, where assignment has 
 not been recorded, as to judgment against assignor;* to lands sold 
 by contract in writing or by deed, neither of which is recorded 
 until judgment is obtained and docketed against the vendor;^ to 
 lands purchased and paid for by pension money when the title is 
 taken to the pensioner;' to lands descended to the heirs of a de- 
 cedent as to a judgment obtained in the lifetime of such de- 
 cedent;^ to lands acquired or aliened after the rendition of the 
 judgment;* to lands conveyed to an insolvent purchaser as trus- 
 tee for his wife, the consideration being paid by the husband.' • 
 But the hen of the judgment upon the lands of the debtor ex- 
 tends only to such rights and interests therein as the debtor him- 
 
 ■ Code, chap. 139, sec. 5; Renick v. Lnddington, 14 W. Va. 367; McClaskey 
 & Crum V. O'Brien, 16 W. Va. 792. "Section 5 of chapter 139 of the Code 
 gives a positive express lien of a judgment against all the lands, of or to 
 which the debtor shall be possessed or entitled at or after the date of the 
 judgment, or if it was rendered in court, at or after the commencement of 
 the term, at which it was so rendered; and such lien continues until it is in 
 some legal manner discharged." Renick v. Luddington, supra. 
 
 ' Burbridge v. Higgins, 6 Gratt. 120. But it is held in Linn v. Palton, 10 
 W. Va., that "a decree providing that if the defendant does not, in a given 
 time, pay the plaintiff a certain sum, that certain property, real and per- 
 sonal, of the defendant, on which the plaintiff has a specific lien, shall be 
 sold, is not a judgment which creates a lien on other real estate of the de- 
 fendant." 
 
 3 Damson v. Smith, 37 W. Va. 580, 16 S. E. Rep. 807. 
 
 « Damson v. Smith, supra. 
 
 5 Anderson v. Nagle, 12 W. Va. 98; Bank v Neal, 28 W. Va. 744. 
 
 « IfcFarland v. JPish, 34 "W. Va. 548, 12 S. E. Rep. 54& 
 
 •' Laidley v. Kline, 8 W. Va. 218. 
 
 « Handly v. Sydenstricker, 4 W. Va. 605; McClung v. Beime, 10 Leigrh. 
 394. 
 
 » Kline v. Triplett, 00 Va. 000, 25 S. E. Rep. 886. 
 
6l6 EQUITY PRINCIPI.BS. 
 
 self owns or may assert therein.^ Hence, the lien does not reach 
 lands held by the debtor as agent for others who are rightfully 
 entitled thereto;* nor to lands which have been sold under a 
 trust deed, in the proceeds of the. sale of which the creditors have 
 shared, by reason of a judgment lien on such lands prior to such 
 sale;' nor to lands outside of the county in which the judgment 
 was rendered, undocketed in the former county, after a sale 
 thereof, and purchased by innocent third parties;* nor to lands 
 conveyed to a purchaser, and eo instanti reconveyed by him to a 
 trustee to secure the purchase-money, so far as the interest 
 therein of the trust creditor is concerned;* nor to lands forfeited 
 to the state for the non-payment of taxes, as to judgments ren- 
 dered against the former owner after such forfeiture;' nor to 
 lands sold under a verbal contract, possession taken by the vendee 
 and such part performance made as to entitle the purchaser to a 
 specific performance thereof in a court of equity, as to any judg- 
 ment obtained against the vendor after such sale.' 
 
 The rule to be deduced from our statute, and the adjudication 
 thereon, is that a judgment creditor can acquire no better or 
 greater right to the estate of the debtor than the debtor himself 
 ,has when the judgment is rendered, except as to after-acquired 
 property of the debtor, and then only to the extent of the debt- 
 or's interest in such after-acquired property.* 
 
 § 461. The docketing of judgments and the effect thereof — 
 Our statute requires the clerk of every county court to keep in 
 his office a well-bound book, in which he shall docket without 
 delay any judgment in this state, upon the delivery to him of an 
 authenticated abstract thereof for that purpose, and the payment 
 or tender of his fee therefor.' 
 
 ' Coldirou v. Asheville Shoe Co., 93 Va. 364, 25 S. E. Rep. 238; Wise 
 v. Taylor, 44 W. Va. 492, 29 S. E. Rep. 1003, 1005, opinion of English, J. 
 
 " Coldiron v. Asheville Shoe Co.. supra. 
 
 3 Effinger v. Kenny, 92 Va. 245, 23 S. E. Rep. 742. 
 
 * Logan V. Pannill, 90 Va. 11, 17 S. E. Rep. 744. 
 
 5 Strauss v. Bodeker, 86 Va. 543, 10 S. E. Rep. 570. 
 
 « Wiant V. Hays, 38 W. Va. 681, 18 S. E. Rep. 807. 
 
 'Snyder v. Botkin, 37 W. Va, 335, 16 S. E. Rep. 591; Pack v. Hans- 
 barger, 17 W. Va. 313; Snyder v. Martin, Id. 276. 
 
 " See Snyder v. Botkin, supra. 
 
 ,9. Code, chap. 139, sec. 4. "In such docket there shall be stated in sepa- 
 rate columns: 
 
 "I. The names in full pf the plaintiff or plaintiffs, and the defendant or 
 
creditors' BII,I3. 617 
 
 The effect given to a judgment which has been thus docketed 
 is fixed by section six, chapter one hundred and thirty-nine, 
 of the Code, which provides that "no judgment shall be a 
 lien upon real estate as against a purchaser thereof for 
 valuable consideration without notice, unless it be docketed 
 according to the third and fourth sections of this chapter in 
 the county wherein such real estate is, either within sixty 
 days next after the date of the judgment or before a deed 
 therefor to said purchaser is delivered for record to the clerk 
 of the county court. Provided, that the judgment of a justice 
 of the peace shall not be a lien on real estate as against such pur- 
 chaser until the same is docketed as aforesaid. ' ' 
 
 This statutory provision has undergone judicial construction, 
 and by the interpretation thus placed upon it as between the 
 judgment creditor and debtor, it has no apphcation;' neither has 
 the statute any force or effect as to the dignity or priority of dif- 
 ferent judgments, these being fixed according to the dates of the 
 judgments.' Hence, where various judgments are rendered 
 against a debtor, and the junior judgments are docketed, and the 
 senior undocketed, and in this state of things the debtor conveys 
 a part of the land to a purchaser for valuable consideration with- 
 
 defendants, as they are stated in such abstract, and, if it appear by such ab- 
 stract that the defendants were sued as partners, their partnership name shall 
 also be stated. 
 
 "II. The amount of the judgment and of the costs, stating eaeh sepa- 
 rately. 
 
 "in. The value of any specific property recovered by the judgment, and 
 the damages (if any) for its detention. 
 
 "IV. The date of the judgment. 
 
 "V. The court in which or the justice by whom it was rendered. 
 
 "VI. The date of docketing the judgment. 
 
 "Every judgment docketed by the clerk of the county court, as aforesaid, 
 shall at the time be indexed by him in an index to be kept in or annexed to 
 said judgment docket, in full, the name of the defendant, and, if more than 
 one defendant, in the full name of each, as they appear in the said abstract. 
 If the defendants are sued as partners, it shall also be indexed in the part- 
 nership name appearing by such abstract. Any clerk of a county court fail- 
 ing to perform any duty required of him in this section shall be guilty of a 
 misdemeanor and fined fifty dollars, and he and his securities in his official 
 bond shall moreover be liable to any person injured by such failure for all 
 such damages as he may sustain by reason thereof." 
 
 ' Renick v. Luddington, 14 W. Va. 367; McClaskey v. O'Brien, 16 W. Va. 
 793; Grantham v. Lucas, 24 W. Va. 231. 
 
 ' Grantham v. Lucas, supra. 
 
6l8 BQUITY PRINCIPLES. 
 
 out notice of the undocketed judgments, and the docketed judg- 
 ment liens are not discharged, the liens of the undocketed judg- 
 ments must be discharged out of the proceeds of the unsold lands, 
 although the effect might be to require the holders of the docketed 
 judgments to resort in whole or in part to the land so conveyed 
 for satisfaction of their judgment liens.^ 
 
 While a purchaser buys subject to a judgment duly docketed, ' 
 or of which he has notice, must take in subordination to the lien 
 of such judgment, it is only to the amount called for by the judg- 
 ment that the lien thereof extends.' 
 
 As we have already considered the subject or question as to 
 who are purchasers within the meaning of our recording acts, 
 and the circumstances under which they are protected, it is not 
 necessary to say any thing further as to that matter, and for the 
 consideration of this, reference is made to a former part of this 
 treatise.' 
 
 § 462. As to the application of the statute of limitations 
 in creditors' suits — 
 
 When a decree of reference is entered in a creditors' suit 
 brought by one person, the statute of limitations ceases to run 
 against all creditors when not formal parties to the bill from that 
 date.* But where a bill is filed by one creditor as plaintiff on be- 
 , half of himself and others, the statute of limitations will cease 
 running against any of the creditors who came in under the de- 
 cree from the time the suit was commenced.* 
 
 It is a well-settled principle that when the suit is brought by 
 ^ single plaintiff for himself only, the order of reference arrests 
 then and at once the running of the statute, and when brought 
 on his own and others* behalf, the running is stopped at the date 
 of the suit.' 
 
 ' Renick v. Luddington, 14 W. Va. 367; McClaskey v. O'Brien, 16 W. Va. 
 792. 
 
 = Bensimer v. Fell, 35 W. Va. 15, 12 S. E. Rep. 1078. 
 
 3 Ante, chap. XXXIII, ? 357. 
 
 <Woodyard v. Polsley, 14 W. Va. 211; Harvey v. Steptoe, 17 Gratt,^289; 
 Jackson v. Hull, 21 W. Va. 612, 613. 
 
 5 Jackson v. Hnll, supra. 
 
 « Paxton V. Rich, 85 Va. 378, 7 S. E. Rep. 531; Bank v. Allen, 76 Va. 250; 
 Insurance Co. v. Maury, 75 Va. 508; Harvey v. Steptoe, supra; Jackson v. 
 Hull, supra. 
 
CRBDITORS' BILLS. 619 
 
 Where a person by petition becomes a plaintiff to a suit 
 brought by a single lien creditor, and process is issued thereon 
 and is served upon the defendant, the statute ceases to run as 
 to the debt of the petitioner from the date of filing the petition.^ 
 
 The broad doctrine is laid down by the supreme court of ap- 
 peals of Virginia, that when ' 'a court of equity has taken pos- 
 session of the estate of the debtor for the purposes of distribu- 
 tion, and proceeded to ascertain the debts and incumbrances to 
 enable it properly to administer and distribute the assets, an ex- 
 ception to the general rule is allowed, and any creditor interested 
 in the fund is permitted to interpose the defense of the statute of 
 limitations."^ In this state, however, a different rule prevails, 
 and the plea of the statute of limitations is treated as a personal 
 defense, so that a mere stranger to the claim, as a creditor, al- 
 though he may be injuriously affected by his debtor's failure 
 to set up the statute, can neither set it up himself nor compel his 
 debtor to do so, in an ordinary creditors' suit.' But the right to 
 interpose the statute of Hmitations is not absolutely restricted to 
 the debtor himself, but extends to privies in estate, as heirs, 
 devisees, vendees, or mortgagees of the property.* But that a 
 creditors' suit may operate to suspend the statute of limitations, 
 it must be brought and carried on in this state.' 
 
 ' Jackson v. Hull, supra. 
 
 " McCartney v. Potomac Electric Co., 94 Va. 198, 26 S. E. Rep. 421, citing 
 Story, Eq. Jut., § 548; i Bart., Ch. Pr. 85; Siewen v. Vapderhorst, i Russ. 
 & M. 347; Owen v. Dickenson, Craig & P. 56; Taxewell v. Whittle, 13 
 Gratt. 345; Woodyardv. Polsley, 14 W. Va. 211; "Werdenbaugli v. Reed, 20 
 W. Va. 588; Post V. McKall, 3 Bland, 498; Partridge v. Mitchell, 3 Edw. Ch. 
 180; and Gratt v. Wiggins, 23 Cal. 25. 
 
 It -will be observed that the learned court, in support of this principle, 
 among other authorities, cites Woodyard v. Polsley, 14 W. Va. 211, and 
 Werdenbaugh v.' Reed, 20 W. Va. 588, two decisions from our own court. 
 But an examination of each of these cases discloses that the suits in both in- 
 stances were against the estates of decedents, and not living debtors. In 
 the latter of these cases, the lands of the decedent were in the hands of a 
 vendee who had purchased in the lifetime of the debtor, and such vendee 
 was permitted to plead the statute. 
 
 3 Welton V. Boggs, 43 W. Va. 620, 32 S. E. Rep. 232. 
 
 * McClaugherty v. Croft, 43 W. Va. 270, 27 S. E. Rep. 246. 
 
 s Hull V. Hull, 35 W. Va. 155, 13 S. E. Rep. 49- 
 
620 EQUITY PRINCIPLES. 
 
 § 463. As to the limitation of the right to enforce judg- 
 ment and other liens — 
 
 Our statute has very clearly prescribed the limit of time 
 wherein the lien of a judgment may be enforced in a court of 
 equity.^ But inasmuch as our supreme court has construed this 
 statute, plain as it is, as well as the court of Virginia, we omit 
 the provisions thereof from the text, and embody here the prin- 
 ciples in this section deduced by our court in their interpretation 
 of this statute, together with those of the court of Virginia on a 
 similar statute. 
 
 Our court declares that the lien of a judgment, on which no 
 execution has been issued, will not be enforced in a court of 
 equity in a suit brought after the lapse of ten years from the 
 date of the rendition of the judgment." 
 
 The lien of a judgment ceases, and no suit can be brought in 
 a court of equity to enforce it, when the right to sue out execu- 
 tion on the judgment or to revive it by scire facias is barred by 
 the statute of limitations.' Under this principle, equity cannot 
 enforce the lien of a judgment when the right to sue out execu- 
 tion thereon or to revive it by scire facias is gone. 
 
 Where execution issues within two years, other executions 
 may be issued on the judgment within ten years from the date of 
 the last execution.* And in no event can the judgment be re- 
 vived, or suit brought to enforce it, after the lapse of ten years 
 
 ' Code, chap. 139, sees. 10 and 11. 
 
 ' Werdenbaugh v. Reid, 20 W. Va. 588; Livesay v. Dunn, 33 W. Va. 453, 
 10 S. E. Rep. 808. 
 
 3 Laidley v. Kline, 23 W. Va. 565; Werdenbaugh v. Reid, supra. 
 
 < Handy v. Smith, 30 W. Va. 195, 3 S. B. Rep. 604, in court's opinion, by 
 Snyder, J. 
 
 "In a suit to enforce the lien of a judgment against real estate, brought 
 more than ten years after the return day of the last execution issued 
 thereon, the creditor cannot avoid the "bar of the statute by a parol agree- 
 ment binding him not to sue out execution or to enforce the judgment until 
 within ten years before the bringing of such suit. Where an execution has 
 been issued upon a judgment more than ten years after the return day of 
 the last preceding execution issued thereon, and a suit is brought by the 
 creditor to enforce the lien Of such judgment against the real estate of his 
 debtor, the issuance of such execution will not avoid the bar of the right to 
 enforce such lien, notwithstanding the said execution is merely voidable, 
 and not liable to be assailed in a collateral suit." Reilly v. Clark, 31 W. Va. 
 571, 8 S. E. Rep. 509. 
 
creditors' bili^. 621 
 
 from the return day of the last execution;' and if more than five 
 years of that period have elapsed during the life of the execution 
 debtor, then the creditor has only the remainder of the ten years 
 within which to revive the judgment against the personal repre- 
 sentative of such debtor." 
 
 The enforcement of a judgment by execution, or its revivor 
 by scire facias, is a legal remedy, and it cannot be enforced in 
 equity when the right to do so at law is barred.' 
 
 These rules governing the right to enforce a judgment must 
 control, unless the plaintifE brings himself within some one of 
 the exceptions mentioned in our statute.* 
 
 It may be well to remark here that the bar of the statute of 
 Umitations will not be applied in equity in the enforcement of a 
 claim , of which equity alone has cognizance.' 
 
 § 464. As to priority of judgment and other liens — 
 
 Ordinarily there is no difficulty in determining the order in 
 which liens upon property shall be fixed. It is scarcely neces- 
 sary to observe that their order depends usually upon the re- 
 spective dates of their creation, unless some matter of fraud, 
 recordation or assignment becomes involved. 
 
 The date of a judgment is reckoned from the first day of the 
 term of court at which it was rendered, or if confessed in the 
 clerk's office in vacation, from the day of confession.' 
 
 A judgment has priority over an imrecorded deed of convey- 
 ance, though the latter was executed prior to the former,' 
 
 ■ Idem; Sherard v. Keiter, 32 W. Va. 144, 9 S. E. Rep. 25. ' Idem. 
 
 3 Hutcheson v. Grubbs, 80 Va. 251; Sutton v. McKenny, 82 Va. 46; Mc- 
 Carty V. Ball, 82 Va. 872, 1 S. E. Rep. 189; Kennerly v. Swartz, 83 Va. 704, 
 3 S. E. Rep. 348. 
 
 ■• IJandy v. Smith, supra; Sherrad v. Keiter, supra. 
 
 s Heiskell v. Powell, 23 W. Va. 718. 
 
 « Hockman v. Hockman, 93 Va. 455, 25 S. E. Rep. 534. 
 
 ' Robinson v. Bank, 00 Va. oc», 17 S. E. Rep. 739; Bank v. Neal, 28 W. 
 Va. 744. "When the conveyance is by an unrecorded deed, and the vendee 
 has held the property adversely for the period of ten years, before a judg- 
 ment is recovered against the grantor, the land cannot thereafter be subjected 
 to the lien of such judgment. As soon as such deed is made and delivered, 
 though unrecorded, the holding thereunder will be adverse to the world; 
 but no adverse possession proven as against the grantee or his creditors can 
 be founded on an executory contract of purchase." Bank v. Neal, supra; 
 Duncan v. Custard, 24 W. Va. 730. 
 
622 BQtJITY PRINCIPI<ES. 
 
 And a creditor secured by a deed of trust may be preferred to 
 a prior purchaser of the property, whose deed has not been re- 
 corded and of which the creditor had no notice at the time of the 
 creation of his trust debt.^ Where there are different deeds of 
 trust on the same property, and alb are recorded in the order of 
 time as to their execution, their priority will be determined in 
 the order of their recordation." A judgment has priority over 
 an unrecorded prior deed of trust, if docketed within sixty* 
 days from its rendition or before the trust deed is recorded, if 
 there is not sufficient other property aside from that embraced in 
 the trust deed to pay the judgment.* 
 
 The vendor's lien on the sale of an equitable title or right to 
 land, where such sale is unrecorded, has preference as against the 
 vendee, his heirs, purchasers with notice and his unsecured gen- 
 eral creditors, but not against purchasers for value without 
 notice, nor against mortgage or trust creditors with or without 
 notice.' There is no priority given to a debt due as administra- 
 tor, over a lien created by judgment obtained in the lifetime of the 
 judgment debtor.* 
 
 But a judgment obtained in the lifetime of the debtor, has 
 priority over his general creditors as to his real estate sold after 
 his death for the payment of his debts.' 
 
 Where a deed of trust is given or a vendor's lien retained, to 
 secure a debt payable in installments at different times to 
 the same person, and the debt has been assigned at different 
 times, the debt will be paid in the order of assignment out of the 
 property upon which it is secured.' 
 
 The priority of liens prescribed by the supreme court on ap- 
 peal must be adhered to in subsequent proceedings in the lower 
 court.' 
 
 Where a deed of trust secures several debts to the same per- 
 sons, with different sureties therein, such debts stand equal as 
 
 ■ Cox V. Wayt, 26 W. Va. 807. 
 
 " Duncan v. Custard, supra, in opinion at p. 738. 
 
 3 The time within which the judgment must have been docketed was for- 
 merly ninety days. Since 1882 the time is limited to sixty days. 
 
 < Duncan v. Custard, supra. 
 
 5 Poe V. Paxton, 26 W. Va. 607. ' Alderson v. Henderson, 5 W. Va. 182. 
 
 ■I Laidley v. Kline, 8 W. Va. 218. 
 
 « Paxton V. Rich, 85 Va. 378, 7 S. E. Rep. 531; Tingle v. Fisher, 20 W. Va. 
 479; Jenkins v. Hawkins, 34 W. Va. 799, 12 S. E. Rep. 109. 
 
 9 Strayer v. Long. 83 Va. 715, 3 S. E. Rep. 372. 
 
CREDITORS' BII,LS. 623 
 
 liens, and are to be paid out of the property conveyed ratably, if 
 the original creditor yet owns them and the rights of assignees 
 are not involved, unless the deed otherwise provides.' 
 
 § 465. When error to direct sale of land — 
 
 Where the bill and answer raise an issue as to the rental value 
 of real estate, this question must be determined by the court be- 
 fore a sale of the land is directed.'' So the rents and profits of 
 the debtor in the hands of a receiver and the money derived 
 from the sale of property under an execution, must be ascer- 
 tained and applied on the debt of the debtor, before a sale of his 
 real estate can be directed.' So in a suit to sell land to pay 
 debts, if the commissioner report that the rents and profits will 
 pay the debts within five years, and an ineffectual attempt to rent 
 it in compliance with a decree to that effect is made, but at a dis- 
 tance from the land, and at a time of the year when it is very 
 difficult to rent land, it is error to direct a sale.* 
 
 When the creditors' bill has been filed and the creditor and 
 trustee under a deed of trust are taade formal parties thereto, 
 pending this suit no sale can be made under the trust deed.' 
 
 If there is a question raised as to the validity of the title to the 
 property sought to be subjected to the debt of the debtor, this 
 must be settled before a sale thereof is directed.* Nor can the 
 sale be directed upon the report of a commissioner who is a party 
 interested in the cause;^ nor can a decree of sale be executed 
 until all the liens have been ascertained and adjudicated.* 
 
 § 466. When creditors' bill tvill not be dismissed — 
 
 An examination of the authorities will disclose that a creditors' 
 suit is not under the control of the plaintiff, as other suits are, 
 but it is a proceeding in which the lien creditors have a common 
 
 ' Farmers' Bank v. Woodford, 34 W. Va. 480, 12 S. E. Rep. 544. 
 
 ' Dillard v. Krise, 86 Va. 410, 10 S. E. Rep. 430. 
 
 3 Strayer v. Long, 83 Va. 715, 3 S. E. Rep. 372. 
 
 « Mustain v. Pannill, 86 Va. 33, 9 S. E. Rep. 419. 
 
 5 Parsons v. Snyder, 42 W. Va. 517, 26 S. E. Rep. 285. "When a person 
 is made a party to a suit as to his rights involved therein, he must await the 
 action of the court, and cannot, by independent proceedings outside of the 
 suit, defeat such action." Idem. 
 
 « Smith V. Parsons, 33 W. Va. 644, 11 S. E. Rep. 68. 
 
 ' Dillard v. Krise, supra. 
 
 " Harris v. Jones, 96 Va. 658, 32 S. E. Rep. 455. 
 
624 EQUITY PR1NCIPI,BS. 
 
 fnterest, so that the plaintiff, though his debt has been paid, 
 cannot on his own motion dismiss the bill.* 
 
 If the plaintiff's debt has been paid, the cause will proceed in 
 his name, unless an order be made substituting another person as 
 plaintiff.' But where a sole lien creditor brings the suit on be- 
 half of himself, to which other creditors are not made parties, 
 the suit is that of the plaintiff on the record, he is the sole 
 dominus litis, and may dismiss it at will,' though this dominion 
 ceases as soon as the creditors become parties, and in a general 
 sense they become parties as soon as an order of reference is en- 
 tered under which they may prove their demands.* 
 
 § 467. As to power and jurisdiction of a court of equity 
 on a creditors' bill — 
 
 Inasmuch as equity has jurisdiction of a creditors' bill as one 
 of the distinct grounds of its inherent power, having thus once 
 obtained control of the case, the court will go on to a complete 
 adjudication of the rights of the various parties. '' Among these 
 ample powers of the court in this class of cases may be mentioned 
 the right to appoint a receiver for the estate of a decedent 
 when the administrator has been removed, after the sheriff has 
 been appointed administrator de bonis non/ to call in the assets 
 from the hands of a personal representative for the purpose of 
 preserving the fund and applying it in due course of administra- 
 
 ' I<ewis V. Laidley, 39 W. Va. 422, 19 S. E. Rep. 378; Shumate v. Crackett,. 
 43 W. Va. 491, 27 S. E. Rep. 240; Bilmeyer v. Sherman, 23 W. Va. 656. 
 ' Shumate v. Crockett, supra. 
 3 Insurance Co. v. Maury, 75 Va. 508; 
 
 * Idem. "Until such decree is made, unless previously admitted as parties 
 on the record upon special application, the creditors have no such interest 
 in the suit as entitles them to control it. 
 
 "Before any decree for general account is entered, a creditor may, in a 
 proper case, be admitted a party on the record upon a special application 
 for the purpose; and when that is done, he acquires such control of the suit 
 as that it cannot be dismissed without his consent. But the original plain- 
 tiff may still dismiss the suit so far as he is concerned, and it may be prose- 
 cuted by the other party for his own benefit. 
 
 "The mere filing of a petition does not operate /n>^rio vigore to make 
 the petitioner a party. 
 
 "To affect this, an order of the court is necessary." Idem. 
 
 s Kane v. Mann, 93 Va. 239, 24 S. E. Rep. 938. 
 
 * Harman v. McMullin, 85 Va. 187, 7 S. E. Rep. 349, 
 
creditors' bhi^. 625 
 
 tion;' and one creditor may assail the validity of the judgment 
 claimed by a creditor of a prior class,' as well as the sufficiency 
 of the acknowledgment of a deed under which certain rights are 
 claimed.' But the court upon a creditors' bill cannot pass col- 
 laterally on the regularity of the proceedings of the court wherein 
 the judgment was rendered and upon which the execution was 
 issued.* 
 
 § 468. The decree in a creditors' suit — 
 
 As we have already shown,' there can be no decree entered 
 for the sale of real estate until the liens and their priorities 
 have been ascertained, and all these matters must distinctly and 
 clearly be shown on the face of the decree, otherwise the decree 
 is insufficient;* and this should be done in an intelligible man- 
 ner.' Hence, where the court in the fore part of its decree does 
 ascertain the amounts of the several liens and respective prior- 
 ities, and then in the same decree orders a sale of the land, and 
 then on the face of the decree reserves to itself the right to 
 marshal the proceeds of the sale among the creditors, if neces- 
 sary, according to the interest of the respective creditors, it is 
 ordinarily error.' 
 
 But while the general pile as to fixing the priorities of liens is 
 as we have just stated, still this rule is not so fundamental and 
 inflexible in its requirements as to prevent the parties to the suit, 
 who may be interested in its enforcement, from dispensing there* 
 with or waiving a compliance therewith by their consent.' 
 
 And if the debt or debts are due by installments, the terms of 
 the decree must not make the payments for the land fall due 
 more rapidly than such installments, for which it is sold, become 
 due and payable.^" And there can be no decree, as we have 
 already shown," to sell land subject to a widow's dower." 
 
 In a suit against an administrator and his bondsmen for an ac- 
 
 ' Davis V. Chapman, 83 Va. 69, i S. E. Rep. 472. 
 ' Janesville Hay Toll Co. v. Boyce, 35 W. Va. 240, 13 S. E. Rep. 381. 
 ' Idem. * Newman v. Willitts, 60 111. 519. 
 
 5 Ante, chap. XXIII, ? 288. « Anle, chap. XXIII, ? 288. 
 
 7 McClaskey & Cain v. O'Brien, 16 W. Va. 791. « Idem. 
 
 » Parsons v. Thornburg, 17 W. Va. 356. 
 
 " Gates & Bro. v. Cragg, 11 W. Va. 300; Snyder v. Brown, 3 W. Va. 143. 
 II ylnie, i 94. " Sinnett v. Crall, 4 W. Va. 6c». 
 
 40 
 
626 EQUITY PRINCIPLES. 
 
 counting of the estate of a decedent, where it appears that the 
 estate of one of the deceased obligors has been fully administered 
 in a suit for partition to which complainant was not a party, that 
 the assets were suflScient to pay all claims, and that the personal 
 representative took no refunding bond, a personal decree against 
 him is proper.' 
 
 If a deed is set aside as fraudulent and void, and a part of the 
 consideration is a bona fide debt due from the grantor to the 
 grantee, the decree cannot make such a debt a lien upon the land 
 embraced in such deed;' nor can the deed be declared void in toto, 
 but only as to the creditors.' 
 
 If the property to be sold is of greater value than five hundred 
 dollars, the decree of sale must require that the notice of sale be 
 published in a newspaper, and not to do so is error.* 
 
 Where a decree is entered for the sale of land of which a ten- 
 ant is in possession under a lease executed before the rendition 
 of a judgment, to satisfy which the suit is brought, it is errone- 
 ous to decree a sale without inquiring into and protecting the 
 rights of such tenant.^ 
 
 As the law was prior to the acts of 1882, while it was the reg- 
 ular and better practice to provide in the decree of sale that the 
 special commissioner appointed to execute it should give bond in 
 a fixed penalty with proper security;^ still this was not an indis- 
 pensable prerequisite to the validity of the sale. But it is other- 
 wise now, so that when the court enters a decree for the sale of 
 real estate and appoints a special commissioner to make such 
 sale, the decree appointing him must also provide that such com- 
 missioner give bond in a fixed penalty with sufficient security 
 before the clerk, and the omission to so provide in the decree is 
 error for which the decree may be reversed by the court of ap- 
 peals.' And the plaintiff in the suit cannot waive the bond re- 
 quired by the statute of the commissioner appointed to make 
 such sale.* 
 
 The court should also direct in the decree ordering the sale 
 that the cash payment be retained by the commissioner making 
 
 ' Beverly v. Rhodes, 86 Va. 415, 10 S. E. Rep. 572. 
 
 = Bank v. Wilson, 25 W. Va. 242. 3 Duncan v. Custard, 24 W. Va. 730. 
 
 ' Idem. s Moore v. Bruce, 85 Va. 139, 7 S. E. Rep. 195. 
 
 « McClaskey & Crim v. O'Brien, 16 W. Va. 791. 
 
 ' Neeley v. Ruleys, 26 W. Va. 686; Parker v. Valentine, 27 W. Va. 677. 
 
 ' Neeley v. Ruleys, supra. 
 
creditors' bills. 627 
 
 the sale, or be by him paid into bank to the credit of the suit, 
 subject to the future order of the court.^ The purchase-money 
 being thus under the control of the court, will, upon confirma- 
 tion of the report of sale, or upon setting the same aside, be dis- 
 posed of in the way that shall then seem proper.' 
 
 • Arnold v. Castner, 22 W. Va. 461. » Idem. 
 
628 EQUITY PRINCIPI<BS. 
 
 CHAPTER XLIV. 
 DEEDS OF TRUST. 
 
 i 469. Origin and definition of a deed of trust. 
 
 470. Who may execute a deed of trust. 
 
 471. What property may be conveyed in trust. 
 
 472. What a su£5cient description of the property in a trust deed. 
 
 473. Description of the debt intended to be secured by the deed of trust. 
 
 474. As to future advances under a deed of trust. 
 
 475. Form and validity of a trust deed. 
 
 476. Reservations made by the grantor in a trust deed, and his rights as 
 
 to the trust property after the execution of the deed of trust. 
 
 477. The title of the trustee under a deed of trust. 
 
 478. Relation and duties of the trustee to the parties to a trust deed. 
 
 479. Notice and terms of sale under a deed of trust. 
 
 480. As to the trustee making sale of the trust property. 
 
 481. The deed of the trustee, and what it conveys to the purchaser. 
 
 482. Suit to set aside a sale made by a trustee. 
 
 483. Order in which debts secured by trust deed should be paid. 
 
 484. Remedy of cestui que trust where the trustee has misapplied the pro- 
 
 ceeds of the trust sale. 
 
 485. Action at law on debt secured by deed of trust. 
 
 486. Suits in equity to enforce trust deed liens. 
 
 487. When debt secured by deed of trust is barred by statute of limita- 
 
 tions. 
 
 § 469. Origin and definition of a deed of trust — 
 
 It is sufficient to state that our statute^ providing for a deed 
 of trust to pay debts or indemnify sureties, is taken from the law 
 of Virginia found in the Code of i860, chapter one hundred and 
 seventeen, section five. Indeed, our present statute is a literal 
 copy of the Virginia statute contained in the Code of i860. 
 
 A deed of trust may be defined to be a conveyance of real or 
 personal property by one person to another person, called the 
 trustee, as a security for the payment of a debt to a third party, 
 called the ces/ut que trust, or as an indemnity for a third party as 
 a surety, with the power of sale by the trustee as to the property 
 conveyed, when default has been made in the payment of the 
 debt, or the surety has been compelled to pay anything or sus- 
 
 ■ Code, chap. 72, sec. 5. 
 
DEEDS OF TRUST. 629 
 
 tained any loss, in reference to the matter for which the trust 
 deed was given.' 
 
 § 470. Who may execute a deed of trust — 
 
 Inasmuch as a trust deed is a contract, it may be safely stated 
 that any one capable of making a binding contract may likewise 
 execute a deed of trust. This is subject to the qualification, 
 however, that a married woman, unless living separate and 
 apart from her husband, cannot do so unless he unite with her 
 therein. 
 
 As we have already seen,* one member of a firm may execute 
 a deed of trust on personal property to secure the firm creditors. 
 But one member of a partnership cannot give a deed of trust on 
 his individual moiety of real estate, purchased by the firm, to se- 
 cure his individual creditors, so as to thereby in any manner af- 
 fect or prejudice the rights of the firm creditors.' 
 
 § 471. W^hat property may be conveyed in trust — 
 
 From the very definition of the term trust deed, the grantor 
 therein may convey both real and personal property in the same 
 instrument, or simply real or personal property, as the parties 
 may agree. But frequently the question has arisen whether a 
 deed of trust can be made to include after-acquired property. 
 The cases wherein this has arisen are those involving the con- 
 struction of mortgages, but, as the chief difference between a 
 mortgage and a deed of trust is that which relates to their en- 
 forcement, whatever property may be embraced in a mortgage 
 may likewise be included in a deed of trust. At common law, a 
 valid mortgage could not be made to cover after-acquired prop- 
 erty;* but in equity it is otherwise, for the reason that what is in 
 form a conveyance operates in equity, by way of present con- 
 tract, to take effect and attach as soon as the property comes into 
 being, or is acquired.* 
 
 Where no rule of law is infringed and the rights of third par- 
 
 » Schmeltz v. Rix, 95 Va. 509, 28 S. E. Rep. 890; Black's Law Dictionary, 
 1192; Code, chap. 72, sees. 5 and 6; Savings & L. Soc. v. Burnett, 106 Cal. 
 514, 39 Pac. Rep. 922; Powell v. Patison, 10 Cal. 234, 34 Pac. Rep. 676. 
 
 =■ Partnership, ante, \ 380. 
 
 3 Cunningham v. Ward, 30 W. Va. 572, 5 S. E. Rep. 646. 
 
 ■• Manchester Locomotive Works v. Truesdale, 9 L. R. A. 140, note, citing 
 numerous cases. 
 
 5 Idem. 
 
630 EQUITY PRINCIPLES. 
 
 ties are not prejudiced, courts of equity will, in proper cases, 
 give effect to mortgages of subsequently-acquired property.^ 
 Thus it has frequently been held that a mortgage upon an exist- 
 ing railroad may be extended to rolling stock subsequently ac- 
 quired, if an intent to acquire such stock and to hold it subject to 
 the mortgage is sufficiently expressed,^ But a mortgage of after- 
 acquired property can only attach itself to such property in the 
 condition in which it comes into the mortgagor's hands. If it 
 is already subject to mortgages or other liens, the general mort- 
 gage does not displace them, though they may be junior in point 
 of time.' It only attaches to such interest as the mortgagor ac- 
 quires. It is also held that additions of a permanent character, 
 by way of improvements, on mortgaged premises, made by the 
 owner or mortgagor, are regarded as a part of the mortgaged es- 
 tate, and may be sold with it.* 
 
 We think that there is now no question that a deed of trust 
 or mortgage may be made to include after-acquired property, if 
 so provided in the instrument itself." 
 
 The owner may also execute a deed of trust upon its water 
 franchises granted to it by a municipal ordinance;* also a home- 
 stead under the constitution and laws of the state of West Vir- 
 ginia;' upon a contingent remainder in real estate;* upon the 
 equity of redemption existing in real estate.' 
 
 ' Martindale on Conveyancing, ? 438. ' Idem. 3 Idem. * Idem. 
 
 5 Quincy v. Chicago, B. & Q. R. Co., 95 111. 337; Pierce v. Milwaukee & St. 
 P. R. Co., 24 Wis. 551; Brady v. Johnson, 75 Md. 445, 20 1,. R. A. 737, and 
 opinion of the court; Coopers v. Wolf, 15 Ohio St. 523; Pennock v. Coe, 23 
 How. (tJ. S.) 117; Central Trust Co. v. Kneeland, 138 U. S. 414; United 
 lyines Tel. Co. v. Boston Safe Deposit & T. Co., 147 U. S. 431, 37 I,, ed. 231; 
 Frank v. Hicks, 00 Wyo. 000, 35 Pac. Rep. 1025; Grape Creek Coal Co. v. 
 Farmer's Loan & Trust Co., 63 Fed. Rep. 89, 12 C. C. A. (U. S.), 350. 
 
 ' Andrews v. National Foundry and Pipe Works, 61 Fed. Rep. 782, 4 C. C. 
 A. (U.S.)55. 
 
 ' Morgan v. Clark, 30 W. Va. 358, 4 S. E. Rep. 303. 
 
 This must be distinguished from a deed of trust upon personal property 
 set apart as exempt from distress or levy, as such a deed of trust under our 
 statute is invalid. "Any deed of trust, mortgage, or other writing, made 
 by a husband or parent, to give a lien on property which has been set apart . 
 as exempt from distress or levy, under the twenty-third section of the forty- 
 first chapter, shall be void as to such property." Code, chap. 71, sec. 6. 
 
 ' Young V. Young, 89 Va. 675, 23 L. R. A. 642. 
 
 ' Lee V. Feamster, 21 W. Va. 108; Claflin v. Foley, 22 W. Va. 434; Beck v. 
 Beck, 24 W. Va. 586. 
 
 "As stated in the black-letter text, any interest in realty which is subject 
 
DEEDS OF TRUST. 63 1 
 
 And ' 'every deed, conveying land, shall, unless an exception be 
 made therein, be construed to include all buildings, privileges, 
 and appurtenances of every kind belonging to the lands therein 
 embraced."' 
 
 § 472. 'What a sufficient description of the property in 
 the trust deed — 
 
 The object or purpose of a description of land or other prop- 
 erty in a deed or other conveyance, is not that there may be a 
 mere intrinsic identification thereof,'' but simply to furnish the 
 means of identification, and this is all that is required, inasmuch 
 as that is certain which can be made certain.' 
 
 The authorities hold that intrinsic certainty in a deed relative 
 to specific property is impossible;* and that, therefore, if the 
 property as described in the deed can be identified or located by 
 means of the aid of intrinsic evidence, this is all that the law 
 requires to make the instrument valid.* But if taking the in- 
 strument as a whole, the subject of the grant cannot be ascer- 
 tained, the deed will be void.* 
 
 A description by metes and bounds is not necessary, where the 
 
 to sale or assignment may be mortgaged. This interest may be either in 
 possession or in expectancy. So there may be a mortgage of a bond for title, 
 or of a right to possession under a contract for purchase, or of an option to 
 purchase. A widow may mortgage her unassigned right of dower, and a de- 
 visee may mortgage land devised to him in which he has a vested interest. 
 There may be a mortgage of a mortgage, of an equitable right, or of rents. 
 A mortgage of land covers the buildings and fixtures thereon, and the 
 mortgage of a building includes the land on which it stands. A mortgage 
 may be made to cover subsequent improvements and future accessions, 
 such as crops to be planted. So a mortgage may be given to cover after- 
 acquired property, subject, of course, to lieps which may exist on the prop- 
 erty at the time it is acquired." Hopkins on Real Property, 184, 185. 
 
 ' Code, chap. 72, sec. 10. 
 
 » Thorn V. Phares, 35 W. Va. 771, 14 S. E. Rep. 399. ^Idem. 
 
 * Warren v. Syme, 7 W. Va. 474. 
 
 s Foley v. Ruley, 43 W. Va. 573, 27 S. E. Rep. 268, opinion of the court; 
 Warren v. Syme, supra; Thorn v. Phares, supra; Simpkins v. White, 43 
 W. Va. 125, 27 S. E- Rep. 361; Martindale on Conveyancing (2d ed.), \\ 87, 
 88; Sulphur Mines Co. v. Thompson's Heirs, 93 Va. 293, 25 S. E. Rep. 234; 
 Vanmetre v. Vanmetres, 3 Gratt. 148. 
 
 « Martindale on Conveyances (2d ed.), § 87; George v. Bates, 90 Va. 839, 
 20 S. E. Rep. 828. 
 
632 EQUITY PRINCIPI<BS. 
 
 premises are well known by name.* So where there are two de- 
 scriptions of property in a deed, one a true one and the other a 
 false one, the latter will be rejected and the former accepted, and 
 the deed will be valid so far as the description it contains is con- 
 cerned.' And a deed which conveys all the grantor's "property, 
 real and personal," includes and conveys all the grantor's shares 
 of bank Stock.' 
 
 § 473. Description of the debt intended to be secured by 
 the deed of trust — 
 
 It is not essential to the validity of a deed of trust that it truly 
 state the debt intended to be so secured,* that is, it need not 
 state such debt with accuracy." 
 
 I<iteral exactness in describing the indebtedness is not required 
 in a mortgage or deed of trust security. It suffices if the de- 
 scription be correct as far as it goes, and full enough to direct at- 
 tention to the source of correct and full information, without 
 danger that the language used will deceive or mislead creditors 
 or parties interested. ° 
 
 Where a bond providing for the payment of interest annually 
 was secured by a deed of trust, and afterwards, for several years, 
 when the interest was due and payable, interest notes were ex- 
 ecuted, bearing the same rate of interest as the original bond, as 
 between the parties, the deed of trust will secure the payment 
 of interest on these new interest notes, but such interest cannot 
 avail as against subsequent purchasers or creditors.'' The re- 
 citals in a deed of trust of the amount of the debt due to differ- 
 ent creditors, is not conclusive, even as against the grantor 
 and his administrators, as to the amount of the respective debts 
 named in the trust deed;* but a clearly-expressed amount of the 
 debt as shown by the deed of trust, ought not to be enlarged so 
 
 ' Lenning v. White, 00 Va. 000, 20 S. E. Rep. 831. 
 
 ' State Sav. Bank v. Stewart, 93 Va. 447, 25 S. E. Rep. 543; Hunter v. 
 Hume, 88 Va. 24, 13 S. E. Rep. 305. 
 
 3 Feckheimerv. The Nat. Ex. Bank, 79 Va. 80. 
 
 « Riggs V. Armstrong, 23 W. Va. 760, Vanmetre v. Vanmetres; 3 Gratt; 
 148; Martindale on Conveyancing (2d ed.), ? 444. 
 
 5 Keagy v. Trout, 85 Va. 390, 7 S. E. Rep. 329. 
 
 « Martindale on Conveyancing (2d ed.), 2 444. See also Goff v. Price, 42 
 W. Va. 384, 26 S. E. Rep. 287. 
 
 ' Barbour v. Tompkins, 31 W. Va. 410, 7 S. E. Rep. i. 
 
 « GrifSn v. McCaulay, 7 Gratt. 467. 
 
DBEDS OF TRUST. 633 
 
 as to prejudice the rights of subsequent bona fide creditors.' So, 
 too, the mere recital of the debt in the deed of trust is sufficient 
 to show the existence of the debt and its amount, without any 
 bond or note given for the debt by the grantor.^ 
 
 § 474. As to future advances under a deed of trust — 
 
 In McCarty v. Chalfant,' our supreme court has laid down the 
 principle governing the future advances that may be lawfully 
 made under a deed of trust in the following clear and concise 
 terms: "A deed of trust, bona fide made, may be for future ad- 
 vances by the cestui que trust, as well as for present debts and 
 liabilities, and it will be valid between the parties and against 
 subsequent purchasers (after the advances were made) with con- 
 structive or actual notice of the deed of trust, not only as to the 
 indebtedness at the execution of the trust, but also subse- 
 quent advances made by the cestui que trust on the faith of the 
 deed of trust subsequent to the execution of the trust deed, to 
 the extent of the amount specified in the deed of trust. ' ' 
 
 This case lays down the doctrine that the trust is valid as to 
 the extent of the future advances specified in the deed of trust. 
 Future advances ^411 also be protected even where the limit 
 thereof is not defined by the trust deed.* 
 
 It is pretty well settled that a mortgage (or deed of trust) for 
 future advances is good for all the money advanced under it up 
 to such time as a third party shall have acquired an interest by 
 mortgage, conveyance, or judgment on the mortgaged premises, 
 and notice thereof be given to the holder of the mortgage.* 
 
 ' Martindale on Conveyancing (2d ed.), pp. 412, 413. 
 
 ' Watkins v. Dupuy, 87 Va. 87, 12 S. E. Rep. 294. ^ 14 w. Va. 531. 
 
 * Keyes v. Bump, 59 Vt. 391, 9 Atl. Rep. 598. 
 
 s Lanahan v. La-wton, 50 N. J. Ch. 000, 23 Atl. Rep. 476; McCown v. Rus- 
 sell, 84 Wis. 122, 54 N. W. Rep. 31. 
 
 "Mortgage to secure future advances should give all requisite information 
 as to the extent and certainty of the contract, so that a junior creditor may, 
 by inspection of the record and by common prudence and ordinary diligence, 
 ascertain the extent of the inctimbrance. Some of the cases seem to require 
 that a limit shall be fixed to which such advances may reach; but it is gen- 
 erally held to be sufficient that the mortgage indicates the source of full 
 information as to the state of the incumbrance. To secure priority, how- 
 ever, such a mortgage should either be taken for a specific sum of money, 
 sufficiently large to cover the amount of the floating debt intended to be 
 secured, or should specifically mention the sums thereafter to be advanced." 
 Martindale on Conv. (2d ed.), p, 413. See further as to future advances the 
 
634 EQUITY PRINCIPIvES. 
 
 § 475. Form and validity of a trust deed — 
 
 Our statute^ prescribes tlie form of the ordinary and usual 
 deeds of trust to secure debts and indemnify sureties, and while 
 it is advisable to follow this statute, it need not be rigidly ad- 
 hered to in the matter of the draft of such instruments. 
 
 It is not essential to the legality of a deed of trust to secure 
 creditors that it also be executed by them; inasmuch as the deed 
 of trust conveys the title to the trustee as soon as it is executed 
 by the grantor, and can only be avoided by the trust creditors 
 by their express or implied dissent or disclaimer.' It is even 
 valid though executed without their knowledge, if not after- 
 wards renounced by them;' and so, too, if made without the 
 knowledge or assent of the trustee.* And where a trust deed 
 refers to a schedule of a stock of goods, upon which the trust is 
 given, as annexed to the deed and to be taken as a part of it, the 
 deed of tru.st is valid, though such schedule is never annexed to 
 it;* neither does it render the conveyance bad because the trustee 
 is one of the creditors secured thereby;' nor is the validity of the 
 same affected because there is one more seal thereon than there 
 are signatures thereto.' 
 
 § 476, Reservations made by the grantor in a trust deed, 
 and his rights as to the trust property after the 
 execution of the deed of trust — 
 
 In considering the matters of this section, it will be well to 
 note the difference between an exception and a reservation. The 
 distinction between a reservation and an exception is, that by an 
 exception the grantor withdraws from the grant some part of the 
 thing itself which exists in substance at the time of making the 
 grant, and which is included in the granted premises; while a 
 
 following cases: Fuller v. Griffith, 00 Iowa, 000, 60 N. W. Rep. 247; D'Oyly 
 V. Capp, 99 Cal. 153, 33 Pac. Rep. 736; Bryce v. Massey, 35 S. C. 127, 14 S. 
 E. Rep. 768. 
 
 ■ Code, chap. 72, sec. 5. 
 
 »Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. A Rep. 611; Skip- 
 with V. Cunningham, 8 Leigh, 271. 
 
 3 Cochran v. Paris, 11 Gratt. 348; Dance v. Seamon, Idem, 778, 781. 
 
 * Christian v. Yancey, 2 Pat. & Heath, 240; Bowden v. Parrish, 86 Va. 67, 
 69, 9 S. E. Rep. 616. 
 
 s Gordon v. Cannon, i8 Gratt. 387. « Idem. 
 
 ' Kiger v. Sipe, 89 Va. 507, 16 S. E. Rep. 627. 
 
DEEDS OF TRUST. 635 
 
 reservation is of some new right or other thing issuing or coming 
 out of that which is granted, and not a part of the thing itself; 
 or it may be of an existing easement or servitude, not capable of 
 being severed from the grant. ^ And whether a restriction in a 
 deed will be deemed a reservation or an exception, depends less 
 upon the words used than upon the nature of the right or thing 
 reserved or excepted.' A reservation must not be inconsistent 
 with the object of the trust or tend to defeat its purposes.' But 
 a reservation in a deed or charge upon land for maintenance or 
 support is valid, though no amount be fixed.* 
 
 It is scarcely necessary to state that rights which the grantor 
 may anjoy by operation of law need not be reserved in the trust 
 deed; as that the grantor shall take the rents of the property 
 until the trust is foreclosed, because, unless otherwise provided, 
 the grantor is by law entitled to them.' But the grantor can do 
 nothing to aflPect the title or diminish the value of the property 
 covered by the deed of trust, so as to injure the cestui que trust 
 or prejudice his rights.® For instance, he cannot dedicate any 
 part of the property to public use without the consent of the 
 cestui que trust/' nor can he cut timber growing upon the real 
 estate to the prejudice of the rights and interests of the cestui 
 que trust;* and if he attempts to do so, he may be enjoined, as 
 we have already seen.' 
 
 § 477. The title of the trustee under a deed of trust — 
 
 The trustee under a deed of trust holds the legal title to the 
 property conveyed in trust, and his power over the legal estate 
 vested in him exists only for the benefit of the cestui que trustp^ 
 and, of course, for the grantor as well, so far as his declarations 
 and acts relate to the trust subject." 
 
 ' Martindale on Conveyancing (2d ed.), p. 106, 5 Ii8. ' Idem. 
 
 ' Kuhn, Nutter & Co. v. Mack & Bro., 4 W. Va. 186. 
 
 « Bates V. Swiger, 40 W. Va. 420, 21 S. E. Rep. 874. 
 
 5 Cox V. Homer, 43 W. Va. 786, 28 S. E. Rep. 780; Bank of Washington 
 V. Hopp, 10 Gratt. 23. 
 
 « Walker v. Summers, 9 W. Va. 333. ' Idem. 
 
 ' Brady v. Waldren, 2 John. Ch. 148, Law. ed., Bk. i, p. 326; Hutchins v. 
 King, I Wall. 53, Law. ed., Bk. 17, p. 544; Ensign v. Colbum, 11 Paige, 503, 
 Law. ed., Bk. 5, p. 214. 
 
 9 Injunctions, ante, I 237. '" Caldwell v. Prindle, 19 W. Va. 604. 
 
 "See post, I 478. 
 
636 EQUITY PRINCIPI,BS. 
 
 Generally, in a court of equity, no act or negligence of the 
 trustee can prejudice the rights of the cestui que trust} 
 
 § 478. Relation and duties of the trustee to the parties 
 to a trust deed — 
 
 In the first place, it is settled beyond any question that the 
 trustee in a deed of trust is the agent of the grantor and the 
 beneficiary, and that he should so act as to promote their best 
 interests.' And as long as he acts fairly and impartially, and 
 in the proper discharge of the duties of his trust, equity will not 
 interfere with him.' 
 
 In making sale of the trust property, as heretofore shown,* it 
 is the duty of the trustee to conform to the terms and require- 
 ments of the deed of trust in regard thereto." So that if the trust 
 provides for a sale on credit, the trustee must sell on credit;' or 
 
 ' Caldwell v. Prindle, supra. 
 
 = Anchor Stove Works v. Gray, 9 W. Va. 469; Livey v. Winton, 35 W. Va. 
 554, 4 S. E. Rep. 451; Hartman v. Evans, 38 W. Va. 669, 18 S. E. Rep. 8io; 
 Gordon v. Cannon, 18 Gratt. 387, 401; Atkinson v. Becket, 34 W. Va. 589, 12 
 S. E. Rep. 717. 
 
 "He is supposed to be the common friend and agent of both parties, im- 
 partial and disinterested, whose duty it is to act justly and discreetly toward 
 those in interest. In order that the trustee may thus act, a court of equity 
 is always open to him, when the amount due by the deed is uncertain or 
 is in gfood faith disputed, when any cloud rests upon the title, when a rea- 
 sonable price cannot be obtained, or when for any reason a sale is likely to 
 be accompanied by a sacrifice of the property, which at the cost of some 
 delay maybe obviated. Rossettv. Fisher et al., 11 Gratt. 492, i Tuck., Com. 
 B. II, p. 107, I Lomaz Dig. 425; Lane v. Tidball, Gilm. 132; Wilkins v. Gor- 
 don et al., II Leigh, 547; Miller v. Argyle, 5 Leigh, 460; Quarles v. Lucy, 4 
 Munf. 251; Gay v. Hancock, i Rand. 72; Chowning v. Cox, Id. 306; s. c. 3 
 Leigh,' 654 (Taylor v. Chowning); Gibson v. Jones, 5 Leigh, 370; Norman v. 
 Hill et al., 2 Pat. & H. 676. 
 
 "These authorities not only establish the above general principles, but 
 further show that if the trustee in neglect of his duty as trustee fail to ap- 
 ply to a court of equity to remove the impediments to a fair sale, by in- 
 junction any one having a substantial interest may prevent a sale until that 
 can be accomplished, or if a sale be made, may apply to a court of equity, 
 when not in default himself, to have the sale set aside." Spencer and Mil- 
 ler V. Lee, 19 W. Va. 188. 
 
 3 Righter v. Riley, 42 W. Va. 633, 26 S. E. Rep. 357. < Ante, \ i/^f). 
 
 s Patch V. Morrisett, 00 Va. 000, 22 S. E. Rep. 173; Heermans v. Mon- 
 tague, 00 Va. 000, 20 S. E. Rep. 899; Hogan v. .Duke, 20 Gratt. 244, 257; 
 Pultz V. Davis, 26 Gratt. 908. 
 
 ' Patch V. Morrisett, supra. 
 
DEEDS OF TRUST. 637 
 
 if the trust deed requires notice to be posted for thirty days in 
 three public places, there can be no valid sale unless this is 
 done.' 
 
 He must also be personally present at the time and place of 
 sale and supervise the same, and cannot delegate this power to 
 a stranger, authorizing such stranger to make the sale in his ab- 
 sence, unless authorized so to do by the trust deed.* It is the 
 duty of the trustee to apply to a court of equity to remove any 
 and all impediments which stand in the way of a fair and proper 
 sale, (a) as where from the fact of the deed of trust being one 
 of long standing or from any cause, the amount due and to be 
 raised by a sale is uncertain; (5) or where there are various 
 deeds of trust or other incumbrances; (f) where the legal title is 
 outstanding; (</) where there is a cloud upon the title; and the' 
 trustee may, of his own motion, apply to a court of equity to re- 
 move such impediment to a proper execution of the trust, and if 
 he should fail to do this, the party injured by his default has a 
 right to make such application.' 
 
 If the land will bring a better price by dividing the land into 
 separate parcels to be sold, and the owner desires and requires 
 it, it is the trustee's duty to do so, and if he fails or refuses so to 
 do, the owner may invoke the aid of a court of equity to control 
 the action of the trustee in this regard.* 
 
 If the deed of trust does not name the place of sale, the place 
 of sale is left to the sound discretion of the trustee, which dis- 
 cretion he should exercise fairly and prudently, consulting the 
 interests of both parties, whose agent he is; and if he should be 
 in doubt, he should apply to a court of equity for a determination 
 of that question, and if his decision does not give satisfaction to 
 either party, that party may apply to the court to have it de- 
 termined by the court, according to the circumstances of the 
 case, thus substituting for the private conscience of the trustee, 
 
 ' Heermans v. Montague, supra. 
 
 = Smith V. Lowther, 35 W. Va. 300, 13 S. E. Rep. 999; Morris v. Va. State 
 Ins. Co., 90 Va. 370, 18 S. E. Rep. 843; Harvey v. Steptoe, 17 Gratt. 289, 290. 
 
 3 Hartman v. Evans, 38 W. Va. 669, 18 S. E. Rep. 811; Burlew v. Quarrier, 
 16 W. Va. 108. As to his authority and power to apply to a court of equity 
 to remove cloud on title, see Dryden v. Stephens, 19 W. Va. i, 2; Burlew 
 V. Quarrier, 16 W. Va. 108. 
 
 ■• Terry v. Fitzgerald, 32 Gratt. 843; Morris v. Va. State Ins. Co., supra. 
 
638 EQUITY PRINCIPLES. 
 
 "the general conscience of the realm, which is chancery."^ The 
 trustee should not allow urgency of the creditor to influence 
 his conduct, but whether acting under a deed of trust or de- 
 cree of court, he should act impartially, for the interest of the 
 debtor as well as the creditor.' He has, in general, no greater 
 powers as to his trust than a commissioner of a court in equity 
 for a sale of land under its decree.' The trustee in a deed of 
 trust need not give bond under our statute,* before advertising 
 and selling the trust property, unless required to give such bond 
 by the grantor or cestui que trust. ^ 
 
 § 479. Notice and terms of sale under deed of trust — 
 
 In the absence of any provisions or terms in the deed of trust 
 as to the notice of sale our statute provides that the trustee shall 
 "publish a nptice of such sale in some newspaper published in 
 the county, if there be one which will publish the notice at the 
 rates prescribed by law. Such notice shall be published at least 
 once a week for four consecutive weeks preceding the day of sale, 
 and a copy of such notice shall be posted at the front door of the 
 court house for a like period; but if there be no newspaper pub- 
 lished in the county, or if there be none which will publish such 
 notice at the rates prescribed by law, or if in the opinion of the 
 trustee, the property may be of less value than three hundred 
 dollars, such a notice of sale shall be posted at least thirty days 
 prior thereto on the front door of the court house of the county 
 in which the property to be sold is, and at three other public 
 places at least in the county, one of which shall be as near the 
 premises to be sold (in case the sale be of real estate) as prac- 
 ticable; and in all cases whether the notice be published or not, 
 a copy of such notice shall be served on the grantor in the deed, 
 or his agent or other personal representative, if he or they be 
 within the county, at least twenty days prior to the sale.' 
 
 "Every notice of sale shall show the following particulars: 
 (i) The time and place of the sale; (2) the names of the parties 
 to the deed under which it will be made; (3) the date of the 
 deed; (4) the office and book in which it is recorded; (5) the 
 
 ' Morris V. Va. State Ins. Co., supra. ' Idem. 
 
 3 Idem. See Schurtz v. Johnson, 28 Gratt. 661. * Code, chap. 72, sec. 6. 
 
 5 Thompson v. Halstead, 44 W. Va. 390, 29 S. E. Rep. 991. 
 
 * Code, chap. 72, sec. 7. 
 
DEEDS OF TRUST. 639 
 
 quantity and description of the land or other property, or both, 
 conveyed thereby; and (6) the terms of sale.'" 
 
 The law prescribes the publication of the notice once a week 
 for four successive weeks, in some newspaper, etc. The same 
 provision is contained in the Code, chapter one hundred and 
 twenty-four, section twelve, relative to orders of" publication, and 
 our supreme court in construing this latter statute, holds that 
 the four successive weeks are completed on the fourth issue of 
 the newspaper containing the notice, though the four weeks have 
 not actually elapsed between the dates of the first and last publi- 
 cations.' 
 
 We therefore conclude that four successive insertions of the 
 trust-sale notice in a proper weekly newspaper, would answer the 
 requirements of the law in this particular. Notice as we have 
 seen must be served upon the grantor, his agent or personal 
 representative twenty days before the sale, if he or they be within 
 the count}'.' 
 
 Our supreme court in passing upon this statute, in Walker v. 
 Boggess,* says: "Where a party obtains an injunction to a sale 
 which is advertised under a deed of trust, and one of the grounds 
 upon which the plaintiff in his bill relies is that notice has not 
 been served upon the grantor, in order that such ground may 
 avail him it must appear affirmatively that such grantor resides 
 in the county." 
 
 Where the deed of trust designates a particular notice of sale 
 and how it shall be given, these directions must be strictly fol- 
 lowed by the. trustee.' 
 
 As to the terms of sale the trustee must conform to those fixed 
 by the deed of trust,' but if no terms are mentioned therein, then 
 our law prescribes that the sale shall be upon the following 
 terms: "If the property to be sold be real estate, one- third of 
 the purchase-money cash in hand, one third with interest in one 
 year, and the residue thereof, with interest, in two years from 
 the day of sale, taking from the purchaser his notes, with good 
 security, for the deferred payments, and retaining the legal title 
 as further security; the legal title may be conveyed, reserving in 
 
 " Idem, sec. 6. 
 
 » Marling v. Robrecht, 13 W. Va. 440; Miller v. Neff, 33 W. Va. 197, 10 
 S. E. Rep. 378. 
 3 Code, chap. 72, sec. 7. ' 41 W. Va. 588, 23 S. E. Rep. 550. 
 
 s Bowles V. Brauer, 89 Va. 466, 16 S. E. Rep. 356. « Ante, i 249, 279 
 
640 EQUITY PRINCIPLES. 
 
 the deed a lien for the deferred purchase- money, or otherwise se- 
 curing the same; and if the property to be sold be personal es- 
 tate, then for cash." ^ 
 
 The terms of sale as directed by law, in the absence of any 
 provision in the deed of trust, must be those that the law pre- 
 scribed at the time the trust deed was made, notwithstanding the 
 law may have been changed as to the terms of sale after the 
 making of the trust deed. 
 
 On this important point our supreme court, in Walker v. Bog- 
 gess,' lays down the law as follows: "When a deed of trust is 
 executed, the law existing at the time of its execution enters 
 into and forms a part of the contract, and such trust is to be en- 
 forced as to terms of sale in accordance with the statute on the 
 subject existing at the time said trust was executed; and a sub- 
 sequent statute providing for sale under deeds of trust, which 
 provides that such sale shall be on a credit, when the law at 
 the date provided that the sale shall be for cash, will not affect 
 the original contract, and the sale will be made for cash not- 
 withstanding said subsequent statute. ' ' 
 
 § 480. As to the trustee making sale of the trust prop- 
 erty — 
 Our statute provides that the trustee in the trust deed "shall, 
 whenever required by any creditor secured or any surety in- 
 demnified by the deed, or the personal representative of any 
 such person or surety, after the debt due to such creditor or for 
 which such surety may be liable, shall have become payable and 
 default shall have been made in the payment thereof, or any part 
 thereof, by the grantor, sell the property conveyed by the deed, 
 or so much thereof as may be necessary,' at public auction upon 
 such terms as may be mentioned in the deed;" * but if no terms 
 are mentioned in the deed, then upon the terms mentioned in 
 the preceding section, which are taken from the Code. But 
 where the trustee by virtue of this statute may sell the trust 
 property after default made in the payment of the debt, or any 
 part thereof, upon proper demand made upon him so to do, still 
 it is his duty to ascertain the true amount of the trust debt be- 
 fore making sale, and where the debt appears by the deed to be 
 
 ■ Code, chap. 72, sec. 6. • 41 W. Va. 588, 23 S. E. Rep. 550. 
 
 ' Curry v. Hill, 18 W. Va. 370. ♦ Code, chap. 72, sec. 6. 
 
DEEDS OF TRUST. 641 
 
 of an unascertained amount the trustee cannot proceed to sell 
 until a court of equity has fully ascertained and determined the 
 true state of the indebtedness.^ He should also ascertain the 
 amount of the prior liens before sale.' If, too, the trustee may 
 possibly become the purchaser of the trust property, he should 
 not attempt a sale, but if the parties are in court there should be 
 a special commissioner appointed by the court to make the sale.^ 
 
 If the deed provides for sale by the trustee after a certain de- 
 mand or after the expiration of a certain time, there can be no 
 sale until such condition has taken place.* 
 
 Where a deed of trust to secure debts is made to two trustees, 
 with power to both or either of them to sell, the sale may be 
 made by one of them, when the other refuses to act.^ 
 
 After the death of the grantor, if there be considerable per- 
 sonalty of the deceased grantor to apply to the trust debt, there 
 can be no sale by the trustee, under a deed of trust without re- 
 sorting to a court of equity and convening the personal repre- 
 sentatives and heirs and the cestui que trust.'' 
 
 In Gibson v. Jones,' Judge Tucker says: "Indeed, an opinion 
 
 ' Wilkins v. Gordon, 11 I/eigh, 547; Hogan v. Drake, 20 Gratt. 244. 
 
 ' Richardson v. Donahue, 16 W. Va. 687; Curry v. Hill, 18 W. Va. 370; 
 Fleming v. Holt, 12 W. Va. 143, 144; Washington A. & G. R. Co. v. A. & 
 W. R. Co. 19 Gratt. 592. 
 
 "A party conveys all his lands and personal property and choses in action 
 to a trustee, to pay all his debts, not specifying them, the trustee cannot gen- 
 erally file a bill against a particular judgment creditor holding a lien on the 
 land when the deed of trust was executed, asking the court to ascertain and 
 decree whether this particular judgment had been paid in whole or in part. 
 If this in the particular case could not be ascertained by any legal proceed- 
 ing, still the trustee in such a case, unless there be peculiar circumstances 
 taking the case out of the general rule, could if necesary only file a bill in 
 the nature of a creditor's bill to ascertain all the prior judgments unsatisfied 
 and the amounts still due on them, as well as the amount due creditors 
 severally, secured by the deed of trust; and thus avoid a multiplicity of 
 suits against each judgment and general creditor." Ambler v. Leach, 15 
 W. Va. 677. 
 
 3 Fleshman v. Hoylman, 27 W. Va. 728; W. A. &. G. R. Co. v. A. & W. 
 R. Co., supra. 
 
 < Potomac Mfg. Co. v. Evans, 84 Va. 717, 6 S. E. Rep. 2. 
 
 5 Hunter v. Johnson, 23 Gratt. 266. 
 
 ' Spencer and Miller v. Lee, 19 W. Va. 179, in opinion of court, at page 
 189. 
 
 1 5 Leigh, 370. 374- 
 
 41 
 
642 EQUITY PRINCIPI,BS. 
 
 has been entertained by able men tliat a trustee ought not to 
 proceed to sell where the debtor dies; since by his death the 
 duty of redeeming, and the benefit of redemption, which were 
 before blended in the same person, are now separated, the duty 
 devolving on the executor, to whom it belongs to discharge the 
 debts, and the benefit accruing to the heir, who has a right to 
 demand of the executor, if he has assets, to relieve the trust 
 subject from the incumbrance. Moreover the heir, not being 
 conusant of the debts, is unprepared to defend the estate from 
 an unjust sacrifice ' ' ^ 
 
 § 481. The deed of the trustee, and what it conveys to the 
 purchaser — 
 
 If the purchaser has complied with the terms of sale made by 
 a trustee, under a deed of trust, and the trustee declines to exe- 
 cute to him a deed, the purchaser may compel the execution 
 thereof in a court of equity.' But such deed can only be re- 
 quired with covenants of special warranty, as this is the only 
 kind of a warranty that a trustee is called upon to make to a 
 purchaser.' 
 
 The purchaser at a trust sale takes just such title as the gran- 
 tor had, and just such as the grantor conveyed to the trustee. 
 If the grantor conveys a mere equity of redemption to his trustee,, 
 the purchaser takes no higher title than a mere equity of redemp- 
 tion, and would be compelled to pay prior liens or suffer the land 
 to be sold.* If the trustee holds the legal title, this inures to the 
 benefit of the purchaser.' 
 
 ' The doctrine thus announced has been approved in 1 Lorn. Dig. 426; in 2- 
 Min. Inst. 290, and by our court in 19 W. Va., at pp. 189, 190. 
 
 » Atherton v. Hull, 12 W. Va. 170. 3 Fleming v. Holt, 12 W. Va. 143, 
 
 * Bock V. Bock, 24 W. Va. 585, 590. 
 
 s Spencer & Miller v. Lee, 19 W. Va. 187, opinion of court. "If for any 
 reason it is doubtful, whether a sale by a trustee and a deed to the purchaser 
 are valid, and the purchaser executes a deed to the trustee reconveying the 
 land to him, to hold the same as fully and completely as if no sale had been 
 made imder the deed of trust, and the trustee then again advertises the land 
 for sale, and sells it at public auction, and the purchaser at the first sale again 
 becomes the purchaser, and the trustee executes to him a deed for the tract of 
 land, which in a preamble recites all these facts and the payment of the 
 purchase-money at the second sale by the purchaser, and concludes by 
 the trustee conveying to this purchaser, who was the same person as the 
 first purchaser, this tract of land, with all the right, title and interest 
 of the grantor in the deed of trust, to have and to hold the said tract of 
 
DEEDS OF TRUST. 643 
 
 A sale of property under an ordinary deed of trust, given to 
 secure the pajonent of debts, operates to give tp the purchaser 
 the crops growing upon the land sold under the trust deed.^ 
 
 § 483. Suit to set aside a sale made by a trustee — 
 
 In the matter of setting aside sales of property made by trus- 
 tees acting under deeds of trust, executed to secure debts and 
 indemnify sureties, our court has laid down the law that such a 
 sale will not be set aside except for weighty reasons.* If it is 
 sought to set aside such a sale because the notice thereof was not 
 properly advertised, the burden of showing this fact is upon him 
 who attacks the sale,' and the charge must be sustained by satis- 
 factory proof.* But a deed made by a trustee under a power of 
 sale in a deed of trust, conveys an absolute estate in a court of 
 law, whether the conditions of the trust deed have been complied 
 with or not.* 
 
 If the trustee follows the terms of the trust deed and the pro- 
 visions impliedly contained therein by operation of law, and acts 
 fairly in making sale of the trust property, a court of equity will 
 not interpose to disturb the same; as, where the trust deed pro- 
 vides for a sale for cash, and the creditor instructs the trustee to 
 accept in payment only gold and silver and legal tender currency, 
 the announcement of that fact at the sale, without any fraudulent 
 purpose, will not vitiate the sale;* nor will the sale be set aside 
 simply because, at the time of the sale, the property was incum- 
 bered by trust and judgment liens, where there is no uncertainty 
 as to amounts and priorities thereof;^ nor is the fact that the 
 
 land to said purchaser, his heirs and assigns forever. Held, this purchaser 
 will have the title of the grantor in the deed of this tract of land, whether 
 the first sale and deed to the purchaser be valid or void." Fulton v. 
 Johnson, 24 W. Va. 95, 96. 
 
 ■ Kerr v. Hill, 27 W. Va. 576; Crews v. Pendleton, i I^eigh, 297. 
 
 » Corrothers v. Harris, 23 W. Va. 177. 
 
 3 Burke & Keatley v. Adair, 23 W. Va. 139; Lallance v. Fisher, 29 W. Va. 
 512, 2 S. E. Rep. 775; Fulton v. Johnson, 24 W. Va. 95. 
 
 * Lallance v. Fisher, supra. 
 
 It is held in Sanders v. Askew, 79 Ala. 433, that, if a sale is made without 
 giving notice, as required by the terms of the mortgage, that such sale is 
 void. 
 
 To the same purport is Bigley v. Walker, 14 Wall. 297-308, Law Ed., Bk. 
 20, p. 890, and also holding that such sale conveys no title to the purchaser. 
 
 5 Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. Rep. 232. 
 
 'Lallance v. Fisher, supra. t Idem. 
 
644 EQUITY PRINCIPLES. 
 
 debtor was ill at the time of the sale, and died soon after, a suf- 
 ficient ground to set aside a trust sale.* 
 
 But where a sale is made to one of the cestuis que trust by the 
 trustee, under a mutual mistake of fact, and under such mistake 
 the cestui que trust gave more for the property than he otherwise 
 would have done, the sale will be set aside;' so, too, where the 
 trustee sells when he only has an equitable title, but is entitled 
 to have the legal title, whereby a cloud is created upon the trust 
 subject, the sale cannot stand;' and it is improper "for a trustee 
 to sell, under a deed of trust, for a very inadequate price, an un- 
 divided interest in real estate, on the day after a decree, in a suit 
 for partition, has been rendered for a sale of the whole subject, 
 by which the grantor's interest would have been precisely ascer- 
 tained. ' ' * So, ' 'where there is no proof that a sale of property, 
 under a deed of trust, has been advertised as required by the 
 deed, and the deed of the trustee to the purchaser contains a re- 
 cital that the sale was for cash, while the terms of the sale speci- 
 fied in the deed are one-half cash and the other half on a credit 
 of six months, the property being sold for an inadequate price, 
 the sale should be set aside and a resale ordered." ^ 
 
 Nor can a trustee sell lands under a trust deed, which have 
 been sold for delinquent taxes since the execution of the trust, 
 and a tax deed made to the purchaser therefor.' But our court 
 holds that, in order to set aside a sale under a deed of trust for 
 inadequacy of price, irregularity in or want of sufficient notice of 
 sale, or because of incumbrances over the land at the time of sale, 
 a party must proceed without unreasonable delay.'' 
 
 § 483. Order in vrhich debts secured by trust deed should 
 be paid — 
 
 Our statute * provides that the proceeds of sale under a deed 
 of trust shall, after payment of costs, including commissions to 
 the trustee, be applied pro rata to the payment of the debts, unless 
 
 • Bowles V. Brauer, 89 Va. 466, 16 S. E. Rep. 356. 
 
 ' French v. Townes, 10 Gratt. 513. ' Rossett v. Fisher, 11 Gratt. 492. 
 
 < James v. Gibbs, i Pat. & Heath, 277. 
 
 5 Norman v. Hill, 2 Pat. & Heath, 676. 
 
 " Summers v. County of Kanawha, 26 W. Va. 159. 
 
 ' Fowler v. Lewis, 36 W. Va. 112, 14 S. E. Rep. 447. 
 
 ' Code, chap. 72, sec. 6. 
 
DEEDS OF TRUST. 645 
 
 the deed otherwise provides.' This order of the distribution of 
 the proceeds of such sale is not changed because in specifying 
 the debts secured some are mentioned before others; in other 
 words, the debts secured are not to be paid out in the order in 
 which they are set out in the trust, unless the instrument so pro- 
 vides.' 
 
 Where notes or debts of equal priority are secured by deeds of 
 trust, and afterwards assigned, they must be paid out of the pro- 
 ceeds of the trust subject in the order of their assignment.' 
 
 § 484. Remedy of cestui que trust where the trustee has 
 misapplied the proceeds of the trust sale — 
 
 Our court has very clearly defined the remedy of the bene- 
 ficiary under a deed of trust in those instances where the trustee 
 has misapplied the proceeds derived from the sale of the trust prop- 
 erty, in two well-considered cases, in both of which the same 
 conclusion is reached .* 
 
 In the first of these cases,' the court in its first syllabus says: 
 "When a trustee misapplies a trust ftmd, by paying it to a per- 
 son who he must know is not entitled to receive it, and such per- 
 son knows that the trustee violates his trust in paying the fund to 
 him, the cestui que trust may bring a suit in equity against the 
 trustee alone, to compel him to account to him for the amount of 
 the misapplied fund; or he may, if he elects to do so, bring his 
 suit in equity against both the trustee and the person who has im- 
 properly received the fund, to compel them to account therefor. ' ' 
 
 And in the second syllabus thereof the court further says: 
 ' 'In such case, the decree should be first against the person who 
 has improperly received the fund, and, if it cannot be refunded 
 by him, then there should be another decree against the trustee, 
 who should be regarded as the surety of the person who has 
 improperly received the fund. ' ' These two cases must be taken 
 as the well-settled law on this subject in our state. 
 
 ■ See also Farmer's Bank v. Woodford, 34 W. Va. 480, 12 S. E. Rep. 544. 
 
 ' Idem. 
 
 3 Fisher v. Tingle, 20 W. Va. 498; Jenkins v. Hawkins, 34 W. Va. 799, 12 
 S. E. Rep. logo; Gordon v. Fitzhugh, 27 Gratt. 835; Paxton v. Rich, 85 Va. 
 378, 7 S. E. Rep. 531- 
 
 * Vance v. Kirk, 29 W. Va. 344, i S. E. Rep. 717; Thomas v. Linn, 40 W. 
 Va. 122, 20 S. E. Rep. 878. 
 
 5 Vance v. Kirk. 
 
646 EQUITY PRINCIPLBS. 
 
 § 485. Action at law on debt secured by deed of trust — 
 
 When a debt has been secured by deed of trust and the same 
 has matured for payment, the holder thereof may sue thereon at 
 law and obtain a judgment without being compelled in the first 
 instance to resort for satisfaction to the property conveyed in 
 trust to secure the same.' And the trust deed given to secure 
 the debt is not affected by the rendition of the judgment on the 
 debt since the original debt is not merged in the judgment, but 
 only the form of the evidence thereof changed.^ 
 
 § 486. Suits in equity to enforce trust deed liens — 
 
 We have been unable to find any precedent authorizing any 
 suit in equity to enforce the lien created by a deed of trust where 
 no impediment existed to its enforcement in the manner provided 
 by statute. According to high authority, a mere statutory lien 
 cannot be enforced in equity in the absence of a statute confer- 
 ring such jurisdiction upon such court where the statute itself 
 provides a remedy.' 
 
 We are inclined to the opinion that equity will not take juris- 
 diction of a suit brought to enforce the lien of a trust deed, when 
 there is nothing in any manner to prevent a free and fair sale by 
 the trustee in the mode prescribed by law. An examination of 
 the decisions, some of which are given in the foot-notes, will 
 justify this conclusion.* 
 
 § 487. \Vhen debt secured by deed of trust is barred by 
 statute of limitations — 
 In case of a claim secured by deed of trust, although the 
 remedy by an action at law for the same may be barred by the 
 statute of limitations, the remedy under the trust deed (the debt 
 not being extinguished) will not be barred by any lapse of time 
 short of the period sufficient to raise the presumption of payment < 
 twenty years.' But this presumption of payment, after the lapse 
 
 ' Calwell V. Prindle, 11 W. Va. 307. 
 
 = Gibson v. Greene, 89 Va. 524, 16 S. E. Rep. 661. 
 
 3 I Jones on Liens (2d ed.), ? 94. 
 
 « Reynolds v. Bank of Va., 6 Gratt. 174; Woods v. Fisher, 3 W. Va. 586; 
 Kyger v. Sipe, 89 Va. 507, 16 S. E. Rep. 627; Hogan v. Drake, 20 Gratt. 244; 
 Fultz V. Davis, 26 Gratt. 903; Paxton v. Rich, 85 Va. 378, 7 S. E. Rep. 531. 
 See Ambler V. Warwick, i Leigh, marg. pp. 208, 209, 213, and top pp. 227, 
 229, 234; Curry v. Hill, 18 W. Va. 370, and especially p. 375. 
 
 s Camden v. Alkire, 24 W. Va. 674; Criss v. Criss, 28 W. Va. 388; Pitzer v. 
 
DEBDS OF TRUST. 647 
 
 of twenty years, may be repelled by the evidence or circum- 
 stances of the case,* and even a presumption of payment some- 
 what short of twenty years may arise, if aided by surrounding 
 circumstances, rendering it probable that such debt has in 
 fact been paid.* 
 
 Bums, 7 W. Va. 63; Smith v. Wash. City. Va. Mid. & Great So. R. R. Co., 
 33 Gratt. 617; Bowie v. Poor School Soc., 75 Va. 300; Hamilton v. Glenn, 
 65 Va. 901, 9 S. E. Rep. 129. 
 
 ' Camden v. Alkire, supra; Bowie v. Poor School Soc, supra. 
 
 ' Criss V. Criss, supra. 
 
648 EQUITY PRINCIPI,BS. 
 
 CHAPTER XLV. 
 DIVORCE. 
 
 J 488. Jurisdiction and kinds of divorce. 
 
 489. Divorce from the bond of matrimony. 
 
 490. Natural or incurable impotency of body as a ground of divorce. 
 
 491. Willful abandonment or desertion as a ground for divorce. 
 
 492. Adultery as a ground of divorce. 
 
 493. Divorce from bed and board. 
 
 494. Cruel or inhuman treatment as a ground of divorce. 
 
 495. Reasonable apprehension of bodily hurt as a ground of divorce. 
 
 496. Habitual drunkenness as a ground of divorce. 
 
 497. The evidence in stuts for divorce. 
 
 498. The bill in suits for divorce. 
 
 499. Defenses to suits for divorce, and how made. 
 
 500. The effect of a decree of divorce. 
 
 § 488. Jurisdiction and kinds of divorce — 
 
 Our statute, provides, as we have already seen,* that the cir- 
 cuit court on the chancery side shall have jurisdiction of suits for 
 divorces. ' ' ' No such suit shall be maintainable, unless the parties, 
 or one of them, shall have resided in the state one year next pre- 
 ceding the time of bringing such suit. The suit shall be brought 
 in the county in which the parties last cohabited, or (at the op- 
 tion of the plaintiff) in the county in which the defendant re- 
 sides, if a resident of this state; but if not, then in the county 
 in which the plaintiff resides. Such suit may be brought and 
 prosecuted by the wife in her own name, without a next friend, 
 and a decree may be rendered in the case upon the publication of 
 the summons and statement as provided in chapter one him- 
 dred and twenty-four of this Code.'" Jurisdiction in equity to grant 
 divorces is not inherent in such court, but depends upon stat- 
 utory enactment,* and such enactment is construed as remedial.* 
 
 Under our statute, as will be observed, the following facts must 
 
 • Ante, Ch. XLII, ? 447. = Code, ch. 64, sec. 7. ^Jdem. 
 
 * Weber v. Weber, 16 Or. 163, 17 Pac. Rep. 866. 
 5 I Pomeroy, Eq. Jur., ? 98. 
 
DIVORCB. 649 
 
 be shown in order to maintain the jurisdiction of the court in a 
 suit for divorce: 
 
 I St. The parties or one of them must have resided in the state 
 one year next preceding the time of bringing the suit; and this 
 means an actual residence and not a mere legal one;" but the 
 cause may have arisen outside of the state.* 
 
 2d. The suit must be brought in the county in which the par- 
 ties last cohabited. 
 
 3d. Or (at the option of the plaintiff) in the county in which 
 the defendant resides, if a resident of this state. 
 
 4th. But if the defendant is not a resident of this state, then 
 in the county in which the plaintiff resides.' 
 
 It is important that the provisions in this chapter be followed, 
 inasmuch as their observance determines the question of the 
 court's jurisdiction of the subject-matter. 
 
 If the parties last cohabited in one county and the defendant 
 has removed to another, can the suit be brought in the former 
 and defendant served with process in the latter? While there has 
 been no decision of this question either in this state or in Vir- 
 ginia, so far as we have been able to ascertain, we are inclined to 
 the opinion from our investigation of the law bearing on the 
 question, that such jurisdiction is maintainable. 
 
 It is a legal fiction that the domicile of the husband carries 
 with it the domicile of the wife. But in divorce proceedings it 
 is pretty generally held that each may acquire a separate domicile 
 as against the other.* 
 
 And the jurisdiction of the court is at an end upon the death 
 of either of the parties to the suit.' 
 
 Divorces are of two kinds, absolute, and from bed and board, 
 each depending on its own causes and grounds,® which will be 
 considered in some of the subsequent sections of this chapter. An 
 absolute divorce is a total divorce of husband and wife, dissolv- 
 
 ■ Tipton V. Tipton, 87 Ky. 243, 8 S. W. Rep. 440; Knowlton v. Knowlton, 
 155 111. 158, 39 N. E. Rep. 595- 
 
 ' Jones V. Jones, 67 Miss. 195, 8 South. Rep. 712; Thompson v. Thompson, 
 II L. R. A. 443. 
 
 3 See Code, chap. 64, sec. 7. 
 
 ' See note at page 499 of 16 L. R. A. to the case of Loker v. Gerald; 
 Thompson v. Thompson, 91 Ala. 591, 11 L. R. A. 443; Sure v. Lindsfelt, 82 
 Wis. 346, 19 L. R. A. 515. 
 
 5 Mower v. Mower (Mo.), 4 West, 390. " Code, chap. 64, sees. 5 and 6. 
 
650, EQUITY PRINCIPLES. 
 
 ing the marriage tie, releasing the parties wholly from their 
 matrimonial obligations;^ while a divorce from bed and board is 
 only a partial and qualified divorce, by which the parties are 
 separated and forbidden to live or cohabit together, without af- 
 fecting the marriage itself.' 
 
 § 489, Divorce from the bond of matrimony — 
 
 At common law, there were but four causes or grounds for di- 
 vorce a vinculo matrimonii, viz., pre-contract, consanguinity, 
 affinity, impotency;' but our law provides: "A divorce from the 
 bond of matrimony may be decreed for adultery, or for natural 
 or incurable impotency of body, existing at the time of entering 
 into the matrimonial contract; where either of the parties is sen- 
 tenced to confinement in the penitentiary (and no pardon granted 
 to the party so sentenced shall restore such party to his or her 
 conjugal rights); where, prior to the marriage, either party, 
 without the knowledge of the other, has been convicted of an 
 infamous offense; where either party willfully abandons or de- 
 serts the other for three years, a divorce may be decreed to the 
 party abandoned; where, at the time of the marriage, the wife, 
 without the knowledge of the husband, was enciente by some 
 person other than the husband, or, prior to such marriage, had 
 been, without the knowledge of the husband, notoriously a pros- 
 titute, such divorce may be decreed to the husband; or where, 
 prior to such marriage, the husband, without the knowledge of 
 the wife,. had been notoriously a licentious person, such divorce 
 may be decreed to the wife; but no such divorce shall be decreed 
 if it appear that the party applying for the same has cohabited 
 with the other after knowledge of such conviction of such in- 
 famous offense, or has cohabited with the other after knowledge 
 of the fact that she was enciente or had beeh a prostitute, or has 
 cohabited with the husband after knowledge of the fact that he 
 had been notoriously a licentious person as aforesaid."* The 
 causes for which divorce from the bond of matrimony may be 
 decreed by the court are here clearly defined, and the causes thus 
 
 ' Black's Law Die. 382, citing i Black. Comm. 440; 2 Steph. Comm. 310, 
 311; 2 Bish., Mar. & Div., ? 225. 
 " Idem. 
 
 3 Hannan v. Hannan, 16 111. 88; 6 Bacon, Abr. 466; i Black. Comm. 146. 
 ■• Code, chap. 64, sec. 5, 
 
DIVORCB. 651 
 
 defined are exclusive, as the grounds for which such a divorce 
 may or will be granted.^ 
 
 The questions usually arising under such a statute as the one 
 existing in this state, and calling for judicial determination, are 
 those which relate to that which will constitute natural or incur- 
 able impotency of body, willful abandonment or desertion, the 
 pregnancy of the wife at the time of marriage by some person 
 other than the husband, without the knowledge of the husband, 
 or that which constitutes a notorious prostitution of the wife 
 within the meaning of the law, or that which constitutes a no- 
 toriously licentious person or the proof of adultery, some of 
 which questions will be considered in some subsequent sections 
 herein. 
 
 § 490. Natural or incurable impotency of body as a ground 
 of divorce — 
 
 The word "impotent" as used in divorce proceedings, and in 
 statutes similar to ours has frequently been defined by the courts 
 of the different states of the Union, and it is uniformly held to 
 mean wanting in physical power to consummate the marriage, and 
 copulation or coition, the act of gratifying sexual desire, is the 
 consummation of marriage.'' It does not mean merely an in- 
 capacity for procreation.' 
 
 It is settled by authority that in a suit for divorce on the 
 ground of incurable impotency, that a surgical examination of 
 the question may be directed by -the court of the person of the 
 defendant.* 
 
 " Wheeler v. Wheeler, 18 Or. 261, 271, 24 Pac. Rep. goo, 904. 
 
 » Anonymous, 89 Ala. 291, 7 L. R. A. 425; Payne v. Payne, 46 Minn. 467, 
 49 N. W. Rep. 230; Devanbaugh v. Devanbaugh, 5 Paige, 554, 3 Law. ed. 
 553, note; s. c. 28 Am. Dec. 443, note; i Bish., Mar. & Div. ?J 322-338. 
 
 3 Payne v. Payne, supra. 
 
 - ♦ See the nvmierous authorities cited in support of this in the note to Dev- 
 anbaugh V. Devanbaugh, 3 Law. ed. (5 Paige, Ch.) p. 553; Anonymous, 
 (Ala.) 7 L. R. A. 425, 426. 
 
 "A personal examination by physicians or matrons skilled in such matters 
 may be ordered of a woman suing for divorce on the ground of malforma- 
 tion or abnormal physical proportions amounting to physical inability 
 on the part of the defendant, and a similar examination of defendant may 
 be ordered if he contests her right to relief." 7 L. R. A. 425. Idem, 
 at page 426. Also see authorities cited in note to R. & D. R. Co. v. Childers, 3 
 L. R. A. 808. 
 
652 EQUITY PRINCIPtBS. 
 
 Our statute declares as we have seen by the quotation there- 
 from, that the impotence must be of the body and it must be 
 natural or incurable, and have existed at the time of the mar- 
 riage. The phrase "natural or incurable impotency" has given 
 rise to considerable discussion in several of our American courts.' 
 The better and modern authorities show that the words "natural 
 and incurable impotence' ' do not necessarily mean congenital im- 
 potence. The principle to be deduced from the authorities as to the 
 true meaning of this phrase, as used in divorce cases, is that it con- 
 templates, as announced in Griffith v. Griffith, cited in the foot- 
 notes, that the party against whom the charge is made, must 
 "be impotent or incapable of performing the act of coition with 
 the other sex as nature prompts, and incurably so." Therefore, 
 the court holds in the case just cited, that a wife is entitled to a 
 divorce on the ground of the impotency of the husband at the 
 time of the marriage, caused by self -abuse, when the evidence tends 
 to show that through long, continued indulgence, in such vice, he 
 has become so perverted in mind and body as to deprive him of 
 the desire and ability to perform the act of coition with his wife, 
 and that efforts have been made to cure him, and he would not 
 exercise moral restraint over himself." 
 
 § 491. Willful abandonment or desertion as a ground for 
 divorce — 
 
 Our law authorizes a divorce from the bond of matrimony 
 where either party abandons or deserts the other for three years.* 
 It will be observed that the statute does not declare what shall 
 constitute either abandonment or desertion; but they seem to be 
 almost synonymous if not quite so as used here.^ But from our 
 consideration of the use of the two words in the statute, we in- 
 cline to the view that the word abandonment here should have a 
 restricted and technical meaning, and be applied to the act of the 
 party in leaving the other on some ground which the law would 
 recognize as a sufficient ground for leaving, without a forfeiture 
 or impairment of the rights of the party so leaving the other. 
 
 Our court has declared in several instances what shall consti- 
 
 » lo Wlky. Notes Cas. (Pa.) 569; Perris v. Ferris, 8 Conn. 166; Kelnpf v. 
 Kempf, 34 Mo. 211; Griffith v. Griffith, 162 111. 368, 44 N. E. Rep. 820; s. c. 
 55 111. App. 475. 
 
 'Ante, i 489;'Alkire v. Alkire, 33 W. Va. 517; s. c. ii S. E. Rep. ri. 
 
 3 I Bish., Mar. & Div. (6th ed.), ? 773; Bailey v. Bailey, 21 Gratt. 43. 
 
DIVORCE. 653 
 
 tute desertion, and that it is ' 'the voluntary separation of one of 
 the married parties from the other, or the voluntary refusal to renew 
 a suspended cohabitation, without justification either in the con- 
 sent or the wrongful conduct of the other. "^ And the wrongful 
 conduct or justifiable cause which will warrant a willful separa- 
 tion, or a continuance of it, must be such as would be made the 
 foundation of a judicial proceeding for a divorce a mensa et 
 thoro.' The offense of desertion consists: 
 
 First, in the actual ceasing of co-habitation; and, secondly, the 
 intent in the mind of the offending party to desert or abandon 
 the other. These two ingredients must combine and co-exist.' 
 A mere absence of the husband or the wife on business, or a 
 separation of the parties by mutual consent, made with or 
 without the further understanding that one of them shall ap- 
 ply for a divorce, is plainly not a desertion in either.* Neither, 
 as a question of evidence, can desertion be inferred against either 
 from the mere unaided fact of their not Hving together, though 
 protracted absence, with other circumstances, may, as a matter 
 of evidence, estabHsh the original intent.^ The desertion will 
 date from the time one party leaves the other without the inten- 
 tion of returning;* but it must date from the last desertion, where 
 there has been more than one desertion, as two periods of deser- 
 tion cannot be added together so as to constitute the necessary 
 period of three years in order to authorize a divorce from the 
 bond of matrimony.' 
 
 So that if the husband, without an offer on the wife's part to 
 return and live with him at his own residence, consent to take her 
 to his own premises in a house near his residence, without a de- 
 mand that she shall live in his house with him, and there visits 
 her as her husband, the desertion is broken.' But if a husband 
 changes his residence, his wife's residence is changed also, and if 
 without a legal excuse she refuses to go with him, it is desertion 
 on her part.' 
 
 While desertion cannot be inferred from the mere fact that the 
 parties do not live together, yet the intent to desert being once 
 shown, is presumed to continue until the contrary appears.'" 
 
 » Alkire v. 'Alkire, 33 W. Va. 510, 11 S. E. Rep. 11; Martin v. Martin, 33 
 W. Va. 695, II S. E. Rep. 12; Burk v. Burk, 21 W. Va. 445. 
 = Alkire v. Alkire, supra; Martin v. Martin, supra. 
 ' Alkire V. Alkire, supra. " Idem. 5 Idem. 
 
 ' Burk V. Burk, 21 W. Va. 445. ' Idem. * Idem. » Idem. " Idem. 
 
654 BQUITY PRINCIPLBS. 
 
 Within the meaning of the law authorizing a divorce for de- 
 sertion, it has been said that it is desertion by the wife, though 
 she continue to reside in the matrimonial domicile, for her will- 
 fully, persistently and without justification to deny her husband 
 all his conjugal rights, with the intention of casting him off as a 
 husband completely and forever. The continuance of this state 
 of affairs for three years affords cause for divorce on the ground 
 of desertion, whether the husband remains in the matrimonial 
 domicile, occupying separate apartments from his wife, or with- 
 draws from the house and lives elsewhere, provided her conduct 
 be contrary to and against his will, and provided his own con- 
 duct be the result of hers, and to that extent involuntary on 
 on his part^. It must not be concluded from this statement that 
 a refusal on the part of a wife, without good cause, to have sex- 
 ual intercourse with her husband is desertion within the meaning 
 of the law, although such refusal continue for the statutory 
 period of time authorizing a divorce on the ground of desertion. 
 
 "While some able text writers lay the principle down that a re- 
 fusal to have sexual intercouse without good cause for such re- 
 fusal does constitute desertion,' and there are some decisions 
 which seem to advance the same doctrine,' yet the true and bet- 
 ter rule is that a mere refusal on the part of either party to have 
 sexual intercourse with the other, though no ground may exist 
 for such refusal, does not constitute desertion within the mean- 
 ing of the divorce law, and that desertion cannot date from the 
 time of such refusal.' 
 
 It is not really in keeping with the plan and scope of this work 
 to assign reasons for the principles herein announced, as the au- 
 thor has deemed it sufficient to barely cite the authorities in sup- 
 port of the principles laid down in this work, except in a few in- 
 
 » Whitfield V. Whitfield, 89 Ga. 471, 15 S. E. Rep. 543, citing i Bish., Mar. 
 Div. & Sep., § 1670 et seq., Lloyd, Div., pp. 170, 173; Brown, Div., 142 et 
 seq., 4 Field, Briefs, i? 218, 221, 5 Am. & Eng. Enc. Iaw, 802, note i, 803, 
 and cases cited. 
 
 ' I Bish., Mar. & Div. (6th ed.), ?§ 778, 779; Lloyd, Div., pp. 170, 173. 
 
 3 Hermance v. James, 47 Barb. 120; Fishli v. Fishli, 2 Litt. 337; Sisemore 
 V. Sisemore, 17 Or. 542. 
 
 * Stewart v. Stewart, 78 Me. 548, 57 Am. Rep. 822; Southwick v. South- 
 wick, 97 Mass. 327; Steele v. Steele, i Mac. Aith. 505; 2 Kent, Com. (12th 
 ed.), § 27, 128, note i; Eshbach v. Eshbach, 23 Pa. St. 343; Reid v. Reid, 21 
 N. J. Eq. 331, and the well-considered case ot Pritts v. Pritts, 138 III. 436, 
 14 L. R. A. 685, and note; Legelbaum v. Legelbaum, 39 Minn. 258. 
 
DIVORCE. 655 
 
 Stances, and, therefore, it may not be without some purpose or 
 benefit to state the reasons g^ven by the courts for upholding this 
 principle, and that is, that sexual intercourse is only one of the 
 marital rights or duties. There are many other important rights 
 or duties. The obligations the parties assume to each other and 
 to society are not dependent upon this single one. Many of 
 these obligations, such as fidelity, kind treatment, maintenance 
 of children, their education and custody, etc., have legal sanc- 
 tions, and can be enforced or their breach remedied by legal 
 process.^ 
 
 Where a husband or wife has just ground to leave or quit the 
 society of the other, and does so accordingly, neither is guilty 
 of desertion within the meaning of the divorce law.^ 
 
 § 492. Adultery as a ground of divorce — 
 
 "Adultery is the voluntary intercourse of a married person 
 with another than his or her wife or husband, and is almost uni- 
 versally made a ground of divorce.'" 
 
 Adultery is peculiarly a crime of darkness and secrecy; par- 
 ties are rarely surprised in it; and so it not only may, but 
 ordinarily must, be established by circumstantial evidence.* The 
 testimony must convince the judicial mind affirmatively that 
 actual adultery was committed, since nothing short of the carnal 
 act can lay a foundation for divorce. It is, generally speaking, 
 necessary to prove that the parties were in some place together 
 where the adultery might probably be committed.' 
 
 ' See authorities cited in note 4, preceding page. 
 
 ' Hutchins v. Hutchins, 93 Va. 68, 24 S. E. Rep. 903. 
 
 3 Tiffany on Domestic and Personal Relations, 173. 
 
 ♦ Stiles V. Stiles, 167 HI. 576, 47 N. E. Rep. 867. 
 
 5 Opinion of Lacy, J., in Musick v. Musick, 88 Va. 12, 13 S. E. Rep. 303, 
 quoting 2 Bish., Mar. & Div., i 613: "In the recent work of Mr. William 
 Hardcastle Browne, of the Philadelphia bar, on divorce and alimony, it is 
 said (page 54) : 'If a married man, without justifiable cause appearing, visits 
 a house of ill-fame, he must have gone there for an improper purpose, and 
 it is universally held as a proof of adultery. So, also, when he has been 
 shut up with an unchaste woman.' Citing Evans v. Evans, 41 Cal. 103; Van 
 Epps v. Van Epps, 6 Barb. 320; Langstaff v. I<angstaff, Wright (Ohio), 148. 
 The same learned author also remarks that criminal desires may be inferred 
 from consorting with prostitutes, entertaining persons known to be dissolute, 
 or intimacy of any kind with such after knowledge of their immoral repu- 
 tation. Id., p. 55. Mr. Greenleaf says (Ev., vol. 2, sec. 44): 'A married 
 man going into a known brothel raises a suspicion of adultery, to be rebutted 
 
656 EQUITY PRINCIPLBS. 
 
 § 493. ' Divorce from bed and board — 
 
 Our statute provides that "a divorce from bed and board may 
 be decreed for cruel or inhuman treatment, reasonable apprehen- 
 sion of bodily hurt, abandonment, desertion, or where either party 
 after marriage becomes a habitual drunkard. A charge of pros- 
 titution made by the husband against the wife falsely shall be 
 deemed cruel treatment, within the meaning of this section. ' ' ' 
 
 The same principles apply as to what constitutes desertion or 
 abandonment in divorce from bed and board as those from the 
 
 only by the very best evidence. His going there, and remaining there alone 
 for some time in a room with a common prostitute, is sufficient proof of the 
 crime.' 
 
 "A woman who authorizes her attorney to employ detectives to watch her 
 husband, whom she suspects of infidelity, for the purpose of obtaining evi- 
 dence which will entitle her to a divorce, and who goes with them at a time 
 appointed to surprise him in a compromising position with a lewd woman em- 
 ployed by them for that purpose, may be found to have known that the 
 woman's movements were governed by them, so as to show connivance on 
 her part which will bar her right to divorce. 
 
 "The right to a divorce for adultery will be barred if plaintiff consented to 
 the employment of a person to allure defendant into the offense for which 
 the action is brought. 
 
 "Courts will use their discretion to defeat any and all attempts to use the 
 forms of the law of divorce to minister to the caprices of the fickle-minded, 
 or to the revenges of the disappointed or vindictive, or to the passions of the 
 incontinent." Dennis v. Dennis, 68 Conn. 186, 34 L. R. A. 449. 
 
 "A decree of divorce on the ground of adultery is sustained by evidence 
 of an unexplained visit by defendant to a brothel at night and of a previous 
 visit to a house of assignation with a man whom she had previously clan- 
 destinely met." Stackhouse v. Stackhouse (N. J.), 36 Atl. Rep. 884. 
 
 "Evidence that defendant in an action for divorce on the ground of adul- 
 tery arranged to go to a hotel with a woman other than his wife with the 
 purpose and expectation of committing adultery with her; that they regis- 
 tered at such hotel as husband and wife under a false name, and went into a 
 separate bedchamber alone, where defendant took off his coat and vest, re- 
 maining there with her for half an hour, is sufficient to justify a decree of 
 divorce, although defendant denies that he committed the offense." Kas- 
 tendiek v. Kastendiek (N. J.), 35 Atl. Rep. 744. 
 
 "A finding of adultery by a wife living apart from fler husband is not jus- 
 tified by evidence that a man lived in her house as a boarder, with whom as 
 a partner she occasionally appeared on the variety stage, and by whose name 
 she was known by some of the neighbors, and that on one occasion he was 
 introduced as her husband, in the absence of evidence of the usual circum- 
 stances attending illicit intercourse." Stiefel v. Stiefel (N. J.), 35 Atl. Rep. 
 287. 
 
 ' Code, chap. 64, sec. 6. 
 
DIVORCB. 657 
 
 bond of matrimony, except that in the latter the period is three 
 jears, while in the former no fixed or determinate period is neces- 
 sary.^ We will therefore notice the grounds of cruel or inhuman 
 treatment, reasonable apprehension of bodily hurt and habitual 
 drunkenness. 
 
 § 494. Cruel or inhuman treatment as a ground of di- 
 vorce — 
 
 The question of what constitutes cruel or inhuman treatment 
 within the meaning of our divorce law has not been before our 
 court except incidentally in the case of Ball v. Stewart,' which 
 was a suit brought by the widow of a decedent for the assign- 
 ment of dower, who had abandoned her husband in his lifetime, 
 and the right of dower turned upon the question whether or not 
 the plaintiff had voluntarily left her husband for such cause as 
 would entitle her to a divorce from bed and board, upon the 
 ground of cruel or inhuman treatment. The court only decides 
 that the action of the court below was clearly right in awarding 
 the plaintiff the relief prayed for, but does not determine what 
 is cruel or inhuman treatment and lays down no rule or prin- 
 ciple in reference thereto.' So we must examine the question as 
 to this matter in the light of the authorities as found in the de- 
 cisions of our sister states, and these agree that cruel or inhuman 
 treatment must consist of physical cruelty, either direct or con- 
 sequential without personal violence,* or any conduct which is 
 attended with bodily harm rendering it impossible or unsafe to 
 discharge the duties of the marital relations, or any actual 
 
 ' Bailey v. Bailey, 21 Gratt. 43. 
 
 ' 41 W. Va. 554, 24 S. E. Rep. 632. 
 
 3 The court in this case in the course of its opinion, speaking of the evi- 
 dence, says: "Excluding the testimony of the plaintiff as incompetent, the 
 other competent evidence in the case shows that, while she was a quiet, 
 dutiful and hard-working wife, her husband was high tempered, jealous, 
 and vindictive, abusive, subject to insane spells, and even threatened to kill 
 her, accused her at times of thinking more of a former lover than she did 
 of him, although they had been married many years and raised children, 
 and that it was dangerous for her to stay with him without the protection of 
 their sons or some one else. In short, by his cruel and inhuman conduct, he 
 forced her to live apart from him." 
 
 < Tiffany, Per. & Dom. Rel. 175; Barnes v. Barnes, 95 Cal. 171, 16 1,. R. A. 
 660. 
 
 42 
 
658 EQUITY PRINCIPLES. 
 
 physical violence. ^ The principle underiying the doctrine of the 
 law may be better understood by illustration than by abstract 
 definition. 
 
 Thus where it appears that for a series of years a husband 
 has habitually abused and maltreated his wife, using coarse, 
 vulgar and insulting language towards her, kicking and beating 
 her on trivial occasions, and threatening her with serious bodily 
 injury, rendering it in the opinion of the neighbors and domestics 
 of the family unsafe for her to live with him, although others 
 with inferior opportunities give a contrary opinion, a divorce 
 from bed and board should be decreed, under Code of Virginia, 
 1873, chapter one hundred and five, section seven, providing that 
 such divorce "may be decreed for cruelty, reasonable apprehen- 
 sion of bodily harm, abandonment, or desertion. " ' So in a suit 
 by a wife for divorce a mensa et thoro on the ground of cruelty, 
 the evidence for complainant showed defendant habitually acted 
 in such a manner as to annoy and mortify her; that he sat on 
 the front porch of his house, near a public road, with no other 
 clothing than his shirt; that he abused her, struck her, and was 
 frequently drunk; that he taught his little daughter to swear; 
 that on one occasion he came into complainant's room at night, 
 with a sword and pistol, and threatened to kill her; that com- 
 plainant was very delicate and nervous; and that finally he drove 
 her and her three year old child from the house at night. 
 Held, that the complainant was entitled to the relief sought.' 
 And where a husband beats his wife with a stick, inflicting a 
 serious wound, struck her in the face with his fist, brutally 
 assaulted her, taking her by the hair, and cursing her, drew a 
 pistol, and so terrified her that she and her children fled, and 
 sought refuge with a neighbor, the court is justified in decreeing 
 a divorce and granting to the wife the custody of the children.* 
 And a wife is entitled to a divorce for inhuman treatment where 
 her husband, besides frequently abusing her and her children, 
 
 ' Tiffany, 175, 176; Doolittle v. Doolittle, 78 Iowa, 691, 43 N. W. Rep. 
 616, 6 L. R. A. 187, and note. 
 
 But a single blow given in anger by husband to wife is not necessarily 
 cruel and barbarous treatment. Hardie v. Hardie, 162 Pa. St. 227, .25 L. R- 
 A. 697. 
 
 ' Myers v. Myers, 83 Va. 806, 6 S. E. Rep. 630. 
 
 ' Kinsey v. Kinsey, 90 Va. 16, 178. E. Rep. 819. 
 
 « Heninger v. Heninger, go Va. 371, 18 S. E. Rep. 193. 
 
DIVORCE. 659 
 
 habitually addressing her with profane and obscene language, 
 and appljdng to her opprobrious epithets, has on several occa- 
 sions treated her with physical violence, and once in the presence 
 of her children accused her of improper relations with another 
 man, while he has not furnished her the necessities of life, has 
 been indifferent to her in sickness, invited farm hands to sit in 
 the same room she was occupying with aggravating language 
 and irritating manner, although no single act was sufficient to 
 endanger her life.^ 
 
 A failure to furnish suitable clothing or necessary medical aid 
 when sick is cruelty on the part of the husband toward the 
 wife.' 
 
 These cases gjiven here show very clear and well-marked in- 
 stances of cruel or inhuman treatment. 
 
 But that is also cruelty which tends to bodily harm and renders 
 cohabitation unsafe.' Cruel treatment it is said may consist in 
 mental anguish and wounded feelings, constantly aggravated by 
 repeated insults and neglect, though unaccompanied by physical 
 blows.* But surely the mental anguish thus produced must en- 
 danger the life or health of the party so afflicted.^ And a charge 
 of prostitution made by the husband against the wife falsely 
 sh^l be deemed cruel treatment within the meaning of our law.' 
 
 » Doolittle V. Doolittle, 78 Iowa, 691, 6 L. R. A. 187. 
 
 'Harnett v. Harnett, 55 Iowa, 45, i Bisb., Mar. & Div. (6th ed.), H 
 726, 736. 
 
 3 1,atliam v. I/atham, 30 Gratt. 320, 321; and cited with approval in My- 
 ers V. Myers, 83 Va. 806, 6 S. E. Rep. 630, 632. 
 
 « Note to Doolittle v. Doolittle, 6 I,. R. A. 187, and citations thereto. See, 
 also, Barnes v. Barnes, 95 Cal. 171, 16 L- R- A. 660. 
 
 sSee opinion of court in Myers v. Myers, supra. "A long-continued 
 course of ill treatment, even without physical violence, may be as effectual, 
 in many cases, to destroy life as any deadly weapon would be. If the treat- 
 ment of plaintiff by defendant, considered as an entirety, is of a nature to 
 affect her mind, imdermine her health, and thereby endanger her life, it is 
 suflBcient to entitle her to the relief she demands." Doolittle v. Doolittle, 
 supra, and authorities there cited. 
 
 " Code, chap. 64, sec. 6. We here append an extract from the opinion of 
 Lord Stowell in Evans v. Evans, 4 Eng. Eccl. Rep. 310, delivered more than 
 one hundred years ago, as to what is not cruelty: "Mere austerity of temper, 
 petulance of manners, rudeness of language, a want of civil attention and 
 accommodation, even occasional sallies of passion if they do not threaten 
 bodily harm, do not amount to legal cruelty. They are high moral offenses 
 in the marriage state undoubtedly, not innocent surely in any state of life, 
 but still they are not that cruelty against which the law can relieve. Under 
 
66o EQUITY PRINCIPLES. 
 
 § 495. Reasonable apprehension of bodily hurt as a 
 
 ground of divorce — 
 
 There is not a very great distinction between cruelty and 
 
 reasonable apprehension of bodily hurt, as separate grounds of 
 
 divorce. These two grounds are of such analogous nature that 
 
 such miscoaduct of eitlier of the parties — for it may exist on one side as 
 well as the other — the suffering party must bear in some degree the conse- 
 quences of an injudicious connection; must subdue by decent resistance or 
 prudent conciliation, and if this cannot be done both must suffer in silence. 
 And if it be complained that by this inactivity of the courts much injustice 
 may be suffered, and much misery produced, the answer is that courts of 
 justice do not pretend to furnish cures for all the miseries of human life. 
 They redress or punish gross violations of duty, but they go no further. 
 They cannot make men virtuous; and, as the happiness of the world de- 
 pends upon its virtues, there may be much unhappiness in it which human 
 laws cannot undertake to remove. Still less is it cruelty where it wounds, 
 not the nattiral feelings, but the acquired feelings, arising from particular 
 rank and situation; for the court has no scale of sensibilities by which it can 
 gauge the quantimi of injury done and felt, and therefore, though the court 
 will not absolutely exclude considerations of that sort where they are stated 
 merely as matter of aggravation, yet they cannot constitute cruelty where 
 it otherwise would not have existed." This has been ever since regarded 
 as sound law, both in this country and in England. Along this line of prin- 
 ciple we cannot refrain from quoting the apt and timely observations of Judge 
 English in Martin v. Martin, 33 W. Va. 695, 11 S. E. Rep. 15: "The weight 
 of the evidence in the cause is that said plaintiff was continually quarreling 
 with the defendant; that she vas well and comfortably provided for while 
 she was with the defendant; and that when she left she was riding one of 
 the defendant's horses, and both parties seemed to be in a good humor. Her 
 subsequent conduct, however, can leave no room for doubt that she left with 
 the intention of deserting and abandoning her home and husband. In as- 
 suming the marriage relation, it is understood that the contracting parties 
 do so fully aware of the frailties and imperfections of human nature, and 
 conscious of the fact that mutual forbearance must be practiced to enable 
 them to pursue pleasantly the journey of life as companions; each party 
 undertaking to overlook moral wrongs and infirmities in the other. The 
 best interests of society, decency, and morality combine in demanding that 
 the obligations taken upon themselves by the parties who enter into the 
 marriage contract should not be abandoned and disregarded upon the mere 
 whim or caprice of either party, or upon slight cause, real or imaginary; but 
 the cause which will justify such abandonment or desertion mtist be confined 
 and regulated by legal limits, if we would avoid social anarchy, free-loveism, 
 and its natural consequences." 
 
 For form of bill under this section, see Owens v. Owens (Va.) 31 S. E. 
 Rep. 72. 
 
DIVORCE. 66 I 
 
 the discussion of the one necessarily involves the consideration 
 of the other. ^ 
 
 In Myers v. Myers, cited in the foot-notes, the court of ap- 
 peals of Virginia, in construing a statute just like our own and 
 from which our statute is taken, speaking of cruelty and reason- 
 able apprehension of bodily harm, says: "It is plain that, if an 
 act of legal cruelty has been committed, and there is evidence 
 that the guilty party has threatened to repeat that or similar 
 acts, and there is probability that the threat will be executed, or 
 if it appear from the whole case that the conduct of the guilty 
 party is such as tends to endanger the life, limb or health of the 
 other party, or such as to render cohabitation unsafe and im- 
 proper, then the court can have no hesitation in granting the di- 
 vorce on either ground. ' ' 
 
 § 496. Habitual drunkenness as a ground of divorce — 
 
 Under our statute, the habit of drunkenness must have arisen 
 since the marriage to entitle either party to a divorce on that 
 ground, and must be habitual.^ 
 
 "We have been unable to discover any case decided by our su- 
 preme court in which the meaning of the phrase "habitual 
 drunkard" used in our statute has been defined, and must ascer- 
 tain its signification from the decisions of the courts of our sister 
 states, in which statutes of like import have been construed. 
 From an examination of these decisions we deduce the principle 
 that habitual drunkenness, within the meaning of the divorce 
 law, consists in the constant indulgence in such intoxicants as 
 wine, brandy, whisky and drinks of like nature, as will produce 
 intoxication, and the intoxication must be actual and confirmed, 
 though it need not be continuous or even of daily occurrence.^ 
 
 A recent author* defines an habitual drunkard to be "one who 
 
 ' Opinion of Richardson, J., in Myers v. Myers, 83 Va. 806, 6 S. E. Rep. 
 630, at page 634. 
 
 "" Code, chap. 64, sec. 6; Lyster v. Lyster, iii Mass. 327. In this case it is 
 said that if the habits of drunkenness were contracted before marriage, al- 
 though not known to the other party until afterwards, this would not be 
 ^ound of divorce. 
 
 3 Mack V. Handy, 39 La. Ann. 491; Williams v. Gross, 43 L. Ann. 868; 
 Walton V. Walton, 34 Kan. 195; Magahay v. Magahay, 35 Mich. 210; Brown 
 V. Brown, 38 Ark. 324; Mahone v. Mahone, 16 Cal. 627, 81 Am. Dec. 91; 
 Richards v. Richards, 19 111. App. 465; McGill v, McGill, 19 Fla. 341. 
 
 •< Blaok on Intoxicating Liq., ? 425- 
 
662 EQUITY PRINCIPLES. 
 
 is in the habit of becoming intoxicated, or one who commonly or 
 frequently is drunk; not that he is constantly or universally 
 drunk." From the meaning of habitual drunkenness, as is thus 
 shown, it is clear that occasional acts of drunkenness, though it 
 may occur oftener than propriety and good morals permit, do not 
 constitute an habitual drunkard, so as to constitute a ground of 
 divorce, unless such acts are so persistent and frequent as to ren- 
 der the presence of the party in the marriage relation disgusting 
 and unendurable.' 
 
 It is scarcely necessary to state that occasional intoxication is 
 not habitual drunkenness, which is ground of divorce, on the 
 part of a woman any more than on the part of a man.'' 
 
 Intoxication or drunkennesb produced by opiates is not within 
 the purview of the law authorizing a divorce on the ground of 
 drunkenness.' 
 
 § 497. The evidence in suits for divorce — 
 
 We shall not attempt to do more than lay down some general 
 principles for the mere convenience of ready reference, as lack of 
 space forbids us going into any extended consideration of the 
 subject. 
 
 Our statute provides that a divorce cause must be heard in- 
 dependently of the admissions of either party thereto, either in 
 the pleadings or otherwise.* The reading of this statute might 
 reasonably create the impression that in a suit for divorce the ad- 
 missions or declarations of the parties or either of them could 
 not be received in evidence at all. Indeed, there is one decision 
 which in construing the statute from which ours is taken does 
 seem to hold that way.' But this decision was rendered as late 
 as eighteen hundred and ninety, and the court seems to hold, in the 
 course of its opinion, that the bare admissions of the defendant in 
 the suit are insufficient to support a decree of divorce, and further, 
 
 ' Bums V. Bums, 13 Fla. 369; De Liesdernier v. De Lesdernier, 45 La. Ann. 
 1364^ Kempf V. Kempf, 34 Mo. 211; McBee v. McBee, 22 Or. 329; Dennis v. 
 Dennis, 68 Conn. 186, 34 L. R. A. 449. 
 
 = Weathe v. Weathe, 83 Mich. 150. 
 
 3 Dawson v. Dawson, 20 Mo. App. 169; Barber v. Barber (Conn.), 14 Law 
 Rep. 375; Youngs v. Youngs, 130 111. 230, 6 L. R. A. 543. 
 
 * Code, chap. 64, sec. 8. 
 
 5 Hampton v. Hampton, 87 Va. 148, 12 S. E. Rep, 340; dissenting opinion 
 of Lacy, J., in Cralle v. Cralle, 79 Va. 182, 188-195. 
 
DIVORCE. 663 
 
 that the admissions there were extorted by duress. The opinion 
 does not support the syllabus. It does not refer to the previous 
 decisions construing this same statute and reaching a contrary 
 conclusion.' 
 
 In Bailey v. Bailey, cited in the foot-notes, the court in con- 
 sidering section 9 of the Code of Virginia of i860, chap. 109, 
 which is identical with section 8, chap. 64 of ours, says: "Hav- 
 ing thus laid down the legal principles which apply to suits for 
 divorce, upon the ground of abandonment or desertion, we come 
 now to apply these well-settled principles to the evidence in the 
 case before us. But, upon the threshold of this inquiry, we are 
 met with a question which must first be disposed of. The evi- 
 dence contained in the record, is in the main made up of let- 
 ters, of both the plaintiff and defendant, filed and relied upon 
 by the plaintiff. It is insisted by the learned counsel for the de- 
 fendant, that these are but the declarations and admissions of 
 the parties, and cannot, by the express terms of the statute, be 
 regarded as evidence in the cause. They rely upon that provision 
 of the statute which declares that "such suit shall be instituted 
 and conducted as other suits in equity, except that the bill shall 
 not be taken for confessed; and whether the defendant answer or 
 not, the cause shall be heard independently of the admissions of 
 either party in the pleadings or otherwise. ' ' Code, chap. 109, sec. 
 9. I/Ct us briefly examine this objection. Previous to the act 
 of i847-'48, from which this provision of the Code is taken, 
 the jurisdiction of suits for divorce was vested in the legislature. 
 When that jurisdiction was by that act transferred to the courts, 
 the legislature imposed by statute certain limitations and restric- 
 tions to the exercise of that jurisdiction. They defined in ex- 
 press terms the grounds upon which alone the courts were au- 
 thorized to decree a divorce a vinculo matrimonii, as well as those 
 upon which the courts might decree a divorce a mensa et thoro. 
 The whole scope and purpose of the act was to limit the juris- 
 diction of the courts, and to discourage suits of this character. 
 Having specified particularly the causes for which the courts 
 might sever the ties which bind together the husband and wife, their 
 purpose was to prevent a divorce from being obtained by the collu- 
 sion of the parties. All that was intended by the 9th section 
 
 ' Bailey v. Bailey, 21 Gratt. 43; Latham v. Latham, 30 Gratt. 307; Cralle 
 V. Cralle, supra. 
 
664 EQUITY PRINCIPLES. 
 
 (above quoted) was to put in the form of a statutory enactment 
 that principle which had been well settled by the ecclesiastical 
 courts of England and the whole current of decisions of the 
 courts of the Union (where courts and not the legislature had 
 jurisdiction of the subject of divorce), to wit, that a divorce 
 would never be granted merely upon the consent, or on the de- 
 fault of the party charged, but only on proof of the cause 
 alleged. ' ' Here the learned Judge Christian cites the authorities 
 before referred to in support of his reasoning.' 
 
 And the court, continuing, says: "This salutary rule was in- 
 tended to prevent parties who were weary of the bond of matri- 
 mony, and impatient of its restraints and obligations, from ob- 
 taining the aid of the court through their own collusion and 
 default. It was a rule for the protection of public morals and 
 the sanctity of the marriage relation. These were the para- 
 mount objects of the rule, and these were the paramount objects 
 of the statute, enforcing a well-settled rule of law. But surely 
 it could never have been the intention of the legislature to 
 change the rules of evidence, when the suit was for a divorce, 
 and provide a different mode of proving facts in such a case. If 
 the construction contended for by the learned counsel for the ap- 
 pellant be a true one, then everything that the parties write, 
 everything that the parties say, no matter under what circum- 
 stances, must not be read or heard by the court, because they 
 are admissions of the parties, and under the operation of the 
 words of the section, 'or otherwise,' must be excluded. So 
 that, according to this construction, in a suit for divorce upon 
 the charge of adultery, the letters of the guilty party to his or 
 her paramour, written at a time when the other party was living 
 in the unsuspecting confidence and happy security of conjugal 
 fidelity and affection, could not be read in evidence on behalf of 
 the injured party. Or, if the ground alleged be. desertion, let- 
 ters from the husband ordering the wife from home under 
 threats of violence, plainly expressing his purpose not to provide 
 for her support, and deliberately declaring his intention to desert 
 her forever, according to the theory of the counsel, such a letter 
 could not be read in behalf of the wife; and in the one case, 
 though the guilt of the one party is acknowledged and unques- 
 
 » I Matthews' Digest, 590; Williams v. Williams, 3 Greene R. 135; Holland 
 V. Holland, 2 Mass. Rep. 154; Baxter v. Baxter, i Mass. Rep. 346. 
 
DIVORCB. 665 
 
 tioned, the court cannot lend its aid to sever a connection whicli 
 by the laws of God and man it is a crime to continue; and in the 
 other, the helpless and deserted wife is to be turned out upon the 
 cold charities of the world without the Jight or the power to 
 have appropriated to her support one dollar of her husband's 
 estate, though it might all have been derived from her. These 
 would be the unjust and absurd results to which such a construc- 
 tion of the statute would inevitably lead. We cannot give it 
 such a construction, but we think that this section was merely 
 intended to prevent decrees for divorce upon the collusion of the 
 parties, or upon the consent or default of the party charged. 
 "We are of opinion that the letters of the parties may be admitted 
 in evidence in a suit for divorce (except where it is shown that 
 they were written by collusion for the purpose of obtaining a di- 
 vorce), just as in any other case, for the purpose of proving, or 
 as tending to prove, facts pertinent to the question which the 
 court is called upon to decide, to have precisely the same weight 
 as in other cases. ' ' We have taken this elaborate extract from 
 the opinion in this case because of the importance of the subject 
 to which it relates.^ The question here discussed has been before 
 several of the courts of the Union, and the most of them hold 
 that the acts and declarations and admissions of the parties may 
 be received as evidence in the suit, just as may be done in other 
 suits in chancery and actions at law.' 
 
 Our conclusion from the authorities is that section eight of 
 chapter sixty-four of our Code is merely intended to guard 
 against collusive divorces, and to prevent decrees of divorce 
 from being taken on the mere confessions or admissions of the 
 parties or either of them, standing alone and unsupported by any 
 
 " The construction of this statute in Bailey v. Bailey is .aj^proved in Latham 
 V. Latham and Cralle v. Cralle, supra. In Martin v. Martin, 33 W. Va. 695, 
 II S. B. Rep. 12, the statements and declarations of the parties are taken 
 and treated as evidence, but no question is raised as to their admissibility. 
 So in Buit V. Burk, 21 W. Va. 445, 454, the plaintiff's admissions were 
 treated as competent evidence in the cause, and commented upon by the 
 court. 
 
 » Evans V. Evans, 41 Cal. 103; Merrill v. Merrill, 126 Mass. 228; McGowen 
 V. McGowen, 52 Tex. 657; Haggard v. Haggard, 62 Iowa, 82; Lindsay v. 
 Lindsay, 42 N. J. Eq. 150; 7 Atl. Rep. 666; Madge v. Madge, 42 Hun, 524; 
 Smith V. Smith, 167 Mass. 87, 45 N. E. Rep. 52; Mack v. Handy, 39 La. 
 Ann. 491, 2 So. Rep. 181; 5 Am. & Eng. Enc. L. 828, 829; Toole v. Toole, 
 109 N. C. 615, 14 S. E. Rep. 57. 
 
666 EQUITY PRINCIPLES. 
 
 evidence independent of such confessions or admissions; but that 
 the statute never was intended to entirely exclude such evidence 
 as incompetent and not to be considered at all with the other evi- 
 dence in the cause. 
 
 Another principle or rule of evidence very generally acted 
 upon and enforced is, that a decree of divorce will not be granted 
 upon the uncorroborated testimony of the parties to the suit or 
 either of them.' Nor will a court ordinarily grant a divorce for 
 adultery on the uncorroborated testimony of a.particeps criminis} 
 
 Another rule is that the burden is on the plaintiff to establish, 
 by full, clear and adequate evidence, the charges made in his 
 bill.' 
 
 § 498. The bill in suits for divorce — 
 
 The bill in a suit for divorce should allege the jurisdictional 
 facts with reference to the residence of the parties.* 
 
 With us it should aver that the plaintiff and the defendant (or 
 one of them) has resided in the state one year next preceding the 
 time of bringing the suit," and it must also allege that the suit 
 is brought in the county in which the parties last cohabited, when 
 such is the fact, or if the suit is brought in the county in which 
 the defendant resides (which plaintiff may do at his option), such 
 fact of defendant's residence must be averred; but when the de- 
 fendant is a nonresident of this state, the suit must be brought 
 in the county of plaintiff's residence, and the facts must be 
 averred. In short, enough must appear on the face of the bill 
 to show a right to bring the suit.* And a decree will be with- 
 held, even though no demurrer has been interposed, unless a 
 right to exhibit the bill appears.' 
 
 This very essential element of the bill should be followed by 
 the allegation of marriage, or it might more orderly precede 
 
 • Haley v. Haley, 67 Cal. 24; De Witt v. De Witt (N. J. Ch.), 36 Atl. Rep. 
 20; Rie V. Rie, 34 Ark. 37; Cummings v. Cummings, 15 N. J. Eq. (2 Mc- 
 Cart.) 138; per contra, Flattery v. Flattery, 68 Pa. St. 27. 
 
 ' Pa3me v. Payne, 42 Ark. 235. 
 
 3 Hampton v. Hampton, 87 Va. 148, 12 S. E. Rep. 340; Throckmorton v. 
 Throckmorton, 86 Va. 768, 11 S. E. Rep. 289. 
 
 < 7 Enc. PI. & Pr. 67 and 68. s Code^ chap. 64, sec. 7. 
 
 ' Code, chap. 64, sec. 7; 7 Enc. PI. & Pr. 67 and 68; Jarvis v. Jarvis, 3 Edw. 
 Ch. 463, 6 N. Y. Ch. L. ed. 726; Mix v. Mix, i John. Ch. 204, i N. Y. Ch. 
 I/, ed. 113. 
 
 1 Jarvis v. Jarvis, supra 
 
DIVORCE. 667 
 
 such allegation, following it with the one of jurisdiction, but it 
 is an essential allegation of the bill;^ and the date and place of 
 marriage should be averred.' 
 
 If the plaintiff desires to be restored to her maiden name, her 
 maiden name should also be alleged.'' But it is not necessary to 
 allege all the facts showing the validity of a celebrated marriage, 
 such as obtaining a license, a ceremony in the presence of wit- 
 nesses, the official character of the person who performed the 
 ceremony, or the fact that such officer made a return of his acts, 
 as such facts are merely probative and not the ultimate facts re- 
 quired in a pleading.* Neither is it necessary to negative any of 
 the defenses, as that plaintiff has not condoned or provoked the 
 alleged offense or that the alleged adultery was not committed 
 with the plaintiff's connivance or collusion; nor need the perform- 
 ance of plaintiff's marital duties be alleged.^ 
 
 The bill in alleging the grounds of divorce must state sufficient 
 facts to constitute a cause for divorce as fixed by the terms of the 
 statute.* 
 
 The time and place, as a part of the discription of the grounds 
 of divorce should be alleged;' and in the charge of adultery, it is 
 sufficient to aver that the defendant "committed adultery" giving 
 the time and place and the name of the party with whom com- 
 mitted, so as to enable the defendant to prepare his defense; but^ 
 if the name of such party is not shown, it may be alleged to 
 
 ■ 7 Enc. PI. & Pr. 69. 
 
 ' Idem. It is usual in practice to accompany the allegation of marriage 
 with a copy of the marriage record, by which the date and place of marriage 
 are shown, and make such record a part of the bill as an exhibit thereof. 
 
 3 Idem. < Idem. 
 
 5 Idem; Steele v. Steele, 104 N. C. 631, 10 S. E. Rep. 707. 
 
 ' 7 Enc. PI. & Pr. 70. "The time when the adultery was committed should 
 be stated with reasonable certainty, although the offense is identified by 
 other facts. Generally, the time should be stated as between certain dates 
 not exceeding a month, but the exact day is not required. Where the 
 offense is sufficiently described by other facts, it has been held sufficient to 
 fix the time within three or four months or within one or two years. 
 
 "There must, however, be some certain period of time stated. A defend- 
 ant will not be required to defend his conduct during his whole married 
 life. A pleading is clearly indefinite which alleges that defendant committed 
 adultery 'at divers times and with persons whose names are to the plaintiff 
 unknown.' " 7 Enc. PI. & Pr. 75, 76. 
 
 ' Idem. 
 
668 EQUITY PRINCIPI,BS. 
 
 have been ' 'committed with a person whose name is unknown to 
 the plaintiff. "1 
 
 It is sufficient to allege abandonment or desertion in the lan- 
 guage of the statute, stating when it occurred, and if for divorce 
 from the bonds of matrimony, the continuous period of at least 
 three years should be averred.* 
 
 If the ground for divorce is cruelty the facts constituting it 
 should be averred together with such certainty as to time, place 
 and circumstances as will enable the defendant to meet the 
 charge.' 
 
 If the charge is habitual drunkenness, it is sufficient to allege 
 in general terms that the defendant since the intermarriage of 
 the parties, using the language of the statute, has become an 
 habitual drunkard, and now is such, that is at the time of suit 
 brought.* 
 
 If the ground be that the defendant has been sentenced to con- 
 finement in the penitentiary, the time, place, the cause for which 
 and by what authority and the term of the sentence should ap- 
 pear in the bill; or if the ground be that the defendant, without 
 the knowledge of the plaintiff, had, prior to the marriage, been 
 convicted of an infamous offense, the bill should set out the court 
 which rendered the sentence, the nature of the crime, the term 
 of the sentence, and it must also appear that the crime is infa- 
 mous, by direct averment that it is "infamous," or by the use 
 of such language that it appears so on the face of the bill.' 
 
 In accordance with the general principle already stated in this 
 
 ' Idem, 72-74. The court of appeals of Virginia has recently decided that 
 it is not necessary that the name of Van particeps criminis be stated in the 
 bill charging adultery as a ground for divorce. Miller v. Miller, 92 Va. 196, 
 23 S. E. Rep. 232. This part of the decision does not seem to have the sup- 
 port of authority. 
 
 ' Idem, 76, 77. 
 
 ' Idem, 77, 78. "Where the cruelty consists of a course of cruel conduct 
 and neglect during a period of time, the allegation may state the general 
 nature of the misconduct without specifying time or place. 
 
 "In such case it is not necessary to allege each act constituting the course 
 of ill-treatment, for while the decree must be based upon the acts of cruelty 
 alleged, and not upon other acts proven at the trial, yet other acts not al- 
 leged are admissible to give color to the acts charged and to inform the 
 court of the general conduct of the parties and their attitude towards each 
 other. It is not improper to allege a general course of cruel conduct to- 
 gether with other allegations of specific acts of cruelty." Idem, 79. 
 
 * Idem. s Idem, 81. 
 
DIVORCE. 669 
 
 section, if incurable impotency is relied on as the ground of di- 
 vorce, it should appear, by proper averment, of what the im- 
 potency consists, and that it is incurable; or if pregnacy ante- 
 dating the marriage be the ground, the averment should follow 
 the language of the statute and aver the name of the person by 
 whom the wife became enciente and the time and place if known. 
 But if the ground be the wife's prostitution prior to the marriage 
 or the husband's licentiousness prior thereto, we incline to the 
 opinion, that the allegation of these causes in the words of our 
 divorce law would be sufficient, but we do not rest our view upon 
 any decided case. Therefore it is suggested that it would be 
 safer, in the absence of authority, to set out the facts and circum- 
 stances showing the prostitution or licentiousness. If the plain- 
 tiff desire to enjoin the husband as defendant in the suit under 
 our statute ' from disposing of his estate so as to preserve the 
 same, the proper allegations to that end should be made in the 
 bill.' 
 
 It is usual to set out the names of the children bom to the 
 parties to the suit during their marriage, so as to enable the 
 court to determine the matter of their custody, though that is 
 not necessary, as the court will do this for itself when deciding 
 the cause. 
 
 The prayer of the bill should be for the specific relief sought, 
 and there should also be inserted the prayer for general relief.' 
 
 While our statute provides that a suit by the wife for a divorce 
 may be brought and prosecuted in her own name, without a next 
 friend,* this must be understood as applying only to her disability 
 of coverture, and not to her minority; so that if she be an infant 
 she must sue by her next friend, and defend by a guardian ad 
 litem? 
 
 § 499. Defense to suits for divorce, and how made — 
 
 As the bill cannot be taken for confessed the plaintiff must 
 prove his case, though no answer has been filed to the bill. The 
 burden is on the complainant to establish his bill, though the de- 
 fendant by his answer should admit the truth of its averments. 
 
 ■ Code, chap. 64, sec. 9. 
 
 =■ Handlan v. Handlan, 37 W. Va. 486, 16 S. E. Rep. 597; Remington v. 
 Superior Ct., 69 Cal. 633. 
 
 1 7 Enc. PI. & Pr. 84. * Code, chap. 64, sec. 7. 
 
 5 Wood V. Wood, 2 Paige Ch. 108, 2 Law. ed. 833. 
 
670 EQUITY PRINCIPI,BS. 
 
 This follows from tlie terms of the statute.^ But if the defend- 
 ant desires to make defense to the suit, he must do so by means 
 of an answer, which should conform to the general rules of equity 
 pleading,^ and he is bound by his answer as in other suits in 
 equity, and no defense can be made which has not been set up 
 therein/ 
 
 There are several grounds that may be relied on by way of 
 defense to a suit for a divorce, the first of which here noticed is 
 that of connivance, which is the corrupt consenting of one spouse 
 to an offense committed by the other, and will bar a suit for 
 divorce.* Another defense is that of collusion which consists of 
 any agreement between the parties whereby they seek to obtain 
 a divorce by an imposition or fraud upon the court, and is 
 ground for refusing relief.* 
 
 The defendant may set up any misconduct of the plaintiff 
 which will prevent a decree for divorce, and this, in the law 
 of divorce is called recrimination. ° 
 
 Another bar to relief in a divorce cause is condonation, which 
 is the forgiveness of a marital offense constituting a ground of 
 divorce, upon condition that the injury shall not be repeated, and 
 is dependent upon conjugal kindness and future good usage.' 
 Condonation may be expressed in words if acted upon or it may 
 
 ' Code, chap. 64, sec. 8. See Hughes v. Hughes, 44 Ala. 698; Beunet v. 
 Bennet, 28 Cal. 6(X); Schmidt v. Schmidt, 25) N. J. Eq. 496; 5 Am. & Eng. 
 Enc. Law, 827; Hampton v. Hampton, 87 Va. 143, 12 S. E. Rep. 340. 
 
 " 7 Enc. PI. & Pr. 86. 
 
 ' Smith V. Smith, 4 Paige (N. Y.), 432, 3 L. ed. 502, and note. 
 
 <Tif., Per. & Dom. Rel. 195. "Connivance by a husband in his wife's 
 aduhery is not shown where already suspecting her to be guilty, he merely 
 suffers her in a single instance to avail herself of an opportunity therefor 
 which she has already arranged, without his knowledge, even though he 
 purposely refrains from warning her because he hopes to obtain evidence 
 which will entitle him to a divorce." Wilson v. Wilson, 154 Mass. 194, 12 
 L. R. A. 524. 
 
 "The right to a divorce for adultery will be barred if plaintiff consented 
 to the employment of a person to allure defendant into the offense for which 
 the action is brought." Dennis v. Dennis, 68 Conn. 186, 34 L. R. A. 449. 
 
 5 Tiffany, Dom. Rel. 198. 
 
 ' Ene. PI. & Pr. 90, Martin v. Martin, 33 W. Va. 695, 11 S. E. Rep. 13; 
 Church V. Church, 16 R. I. 667, 7 L. R. A. 385. 
 
 1 Famham v. Farnham, 73 111. 500; Youngs v. Youngs, 130 111. 230, 6 L. 
 R. A. 548; Tiffany, Per. & Dom. Rel. 99. 
 
DIVORCB. 671 
 
 be inferred from conduct alone.^ But, as we have just seen, con- 
 donation is dependent upon future good treatment, so that, if 
 the injured party condone the wrong, as cruelty for instance, 
 the cause of divorce may be revived by the subsequent unkind- 
 ness of the offending party, and the subsequent misconduct need 
 not be sufficient to warrant a divorce without regard to the pre- 
 vious cruelty. It is sufficient if there be such frequent unkind- 
 ness as to warrant a belief that it will break out into such cruel 
 and inhuman treatment as to then authorize a divorce.' 
 
 § 500. The effect of a decree of divorce — 
 
 "Upon decreeing the dissolution of a marriage, and also upon 
 decreeing a divorce, whether from the bond of matrimony or 
 from bed and board, the court may make such further decree as 
 it shall deem expedient, concerning the estate and maintenance 
 of the parties, or either of them, and the care, custody and 
 maintenance of the minor children, and may determine with 
 which of the parents the children, or any of them, may re- 
 main; and the court may, from time to time afterwards, on the 
 petition of either of the parties, revise or alter such decree 
 concerning the care, custody and maintenance of the children, 
 and make a new decree concerning the same, as the circum- 
 stances of the parents and the benefit of the children may re- 
 quire; and whether the divorce be granted or not, if the parties 
 are living separate and apart from each other, the court may 
 make such order or decree concerning the care, custody and 
 
 » Tiffany, Per. & Dom. Rel. 199; Youngs v. Yovings, supra. "Condona- 
 tion may be express words of forgiveness; but an offer to forgive will not 
 amount to condonation, unless it is accepted or acted upon by the other 
 party. Condonation may be also implied from the conduct of the parties, 
 without proof of express forgiveness, and even, it seems from some of the 
 cases, though it could be shown that there was no forgiveness in fact. Sexual 
 intercourse, for instance, with knowledge of a prior offense, is such con- 
 donation. Voluntary cohabitation, also, is generally held to be proof of 
 condonation; but condonation will not necessarily be implied from the fact 
 that the husband and wife continued to live together, if there was no sexual 
 intercourse. Sexual intercourse will be presumed where the husband and 
 wife are living together, but such presumption will be rebutted. Because of 
 the dependent position of the wife condonation will not be so readily in- 
 ferred from conduct against her as it would be against the husband. " Tif- 
 fany, Per. & Dom. Rel. 201, 202. 
 
 ' Jefferson v. Jefferson, 168 Mass. 000, 47 N. E. Rep. 123. 
 
672 EQUITY PRINCIPLES. 
 
 maintenance of the minor children, or any of them, and may de- 
 termine with which of the parents the children, or either or any of 
 them, may remain, as to the court may seem proper, and the ben- 
 efit of the child or children may require. ' ' ' 
 
 It further provides that, ' 'in granting a divorce from bed and 
 board, the court may decree that the parties be perpetually sepa- 
 rated and protected in their persons and property. Such decree 
 shall operate upon property thereafter acquired,. and upon the 
 personal rights and legal capacities of the parties, as a decree for 
 divorce from the bond of matrimony, except that neither party 
 shall marry again during the life of the other. ' ' ^ 
 
 It is lastly by our law provided that, "when a decree for a 
 separation forever, or for a limited period, shall have been pro- 
 nounced in a suit for divorce from bed and board, it may be re- 
 voked at any time thereafter by the same court by which it was 
 pronounced, under such regulations and restrictions as the court 
 may impose, upon the joint application of the parties, and upon 
 their producing satisfactory evidence of their reconciliation; and 
 when a divorce from bed and board has been decreed for aban- 
 donment or desertion, or other cause, and two years shall have 
 elapsed from the time of bringing the suit wherein such decree is 
 entered, without such reconciliation, the court may, upon the 
 application of the injured party, and the production of satisfac- 
 tory evidence taken in support of such application, decree a di- 
 vorce from the bonds of matrimony, and upon such application 
 the court may read and consider the evidence in the cause taken 
 and filed in the former hearing; provided, the court shall be of 
 the opinion that no reconciliation is probable, and this shall apply 
 to such decrees heretofore as well as hereafter entered. ' ' ' 
 
 Under our statute,* the effect of a decree for divorce from bed 
 and board is the same as one from the bonds of matrimony, ex- 
 cept as to the right of remarriage. A decree in either class of 
 divorces operates alike, after the rendition of the decree, upon 
 property thereafter acquired, and upon the personal rights and 
 legal capacities of the parties.' Hence, it follows that, under 
 this statute, curtesy and dower are barred under a decree from 
 
 ' Code, chap. 64, sec. 11. = Idem, sec. 12. 
 
 3 Idem, sec. 13, as amended by Acts of 1895, pp. 7 and 8. 
 
 * Code, chap. 64, sec. 12. s Idem; Cralle v. Cralle, 79 Va. 182. 
 
DIVORCE. 673 
 
 bed and board, the same as under a decree from the bonds of 
 matrimony.^ 
 
 There is no doubt that, when a decree of divorce has been ren- 
 dered in a suit wherein the defendant was personally served with 
 process, that it is valid everywhere, and is conclusive as to the 
 rights of the parties, if the decree was rendered according' to the 
 laws of the state by whose courts it was pronounced.^ 
 
 But there is a question as to what effect should be given to a 
 decree of divorce regularly and properly obtained in the domicile 
 of the plaintiff, which is in one state, upon constructive service 
 (order of publication) upon the defendant who is domiciled in 
 another state. Upon this question the authorities are in conflict. 
 It is not our province to reconcile them, nor shall we attempt to 
 do so. The weight of reason and authority, as we think, much 
 preponderates in favor of the extraterritorial effect of the 
 decree.' 
 
 ' Cralle v. Cralle, supra; Porter v. Porter, 27 Gratt. 599; Harris v. Harris, 
 31 Gratt. 13; Marshall v. Baines, 88 Va. 1040, 14 S. E. Rep. 978. 
 
 ' Rorer on Interstate Law, 10, 248-250; Story on Conflict of Laws (8th 
 ed.), 275, \ 201. 
 
 5 Thompson v. Thompson, 91 Ala. 591, 11 L. R. A. 443; Cheely v. Claj^ton, 
 no TJ. S. 701, 28 I/, ed. 298; Gould v. Crow, 57 Mo. 200; Boyle v. Latham, 
 61 Iowa, 174; Hawkins v. Ragsdale, 80 Ky. 353, 44 Am. Rep. 483; Hood v. 
 Hood, 100 Mass. 463; Rorer on Interstate Law, 248; Bish., Mar., Div. & 
 Sep., ?? 152-157. 
 43 
 
674 BQUITY PRINCIPI,BS. 
 
 CHAPTER XLVI. 
 ELECTION. 
 
 I 501. Definition of election and the principles upon which it rests. 
 
 502. When a party is put to his election. ' 
 
 503. In what cases the doctrine applies. 
 
 504. What persons bound to make election. 
 
 505. Election by a widow between her estate under the law and a testa- 
 
 mentary gift in lieu thereof. 
 
 506. Effect of election when made. 
 
 § 501. Definition of election and the principles upon 
 which it rests — 
 
 The doctrine of election means that, where two inconsistent 
 rights are presented to the choice of a party, by a person who 
 manifests the clear intention that he should not enjoy both, he 
 must accept or reject one or the other.* 
 
 The law of election rests upon the principle that he who ac- 
 cepts a benefit under a deed or other instrument must adopt the 
 entire contents of the instrument, conforming to all its provisions, 
 and renouncing every right iiiconsistent with it.* It rests also 
 upon the principle that one cannot both claim under and against 
 the same instrument.' But this rule that a party shall not claim 
 under and against the same instrument only applies where the 
 thing demanded is devised or given to another by a will or other 
 written instrument.* 
 
 § 502. When a party is put to his election — 
 
 In order to put a party to his election under a will or other 
 instrument, it is necessary that the testator or donor shall 
 have given to another something that belongs to the party re- 
 
 » Peters v. Bain, 133 U. S. 670, 33 Law ed. 696; Fetter on Equity, 51. 
 
 "Election is the right or choice between two steps or things by a person 
 not entitled to all." 6 Am. & Eng. Enc. Law, 247. 
 
 ' Penn v. Guggenheimer, 76 Va. 839; Peters v. Bain, supra; 2 Beach, Mod. 
 Eq. Jur., § 1068. 
 
 3 Dickinson v. Dickinson, 2 Gratt. 493. 
 
 ' Norman v. Cunningham, 5 Gratt. 64; Crump v. Redd, 6 Gratt. 372; Haack 
 V. Weicken, 118 N. Y. 67, 23 N. E. Rep. 138. 
 
BLKCTION. 675 
 
 quired to elect; and that he shall have given to the latter directly, 
 and not derivatively and indirectly, a substantial donation by the 
 will or other instrument.^ And, in order to raise or create a case 
 requiring an election, the intention of the testator to give that 
 which is not his own must be clear and unmistakable." But it is 
 not necessary that such intention be expressly declared; it may 
 be gathered from the whole instrument;' and the donor's inten- 
 tion must appear from the instrument itself, not dehors the in- 
 strument.* 
 
 § 503- Ii^ vrhat cases the doctrine applies — 
 
 The doctrine of election applies to property of every kind and 
 to interests of every description.' And, while it principally ap- 
 pUes in cases of wills,* yet it may arise in cases of deeds of trust 
 and other instruments.' 
 
 § 504. W^hat persons bound to make electon— 
 
 It is well settled upon high authority that all persons, not un- 
 der disabilities, are entitled to make election and are even bound 
 to do so.* 
 
 Married women may generally elect, but infants and lunatics 
 cannot.' For the latter class the court directs an inquiry as to 
 that which will be most beneficial to them, and then the court 
 makes the election accordingly.^" 
 
 ' Bennett v. Harper, 36 W. Va. 546, 15 S. E. Rep. 143, 2 Beach, Mod. Eq. 
 Jul, S 1071. 
 
 = Fenn v. Guggenheimer, supra; 2 Beach, Mod. Eq. Jur., § 1072. 
 
 ' Penn v. Guggenheimer, supra. "An election may be either: 
 
 "{a) Express; such an election being some positive declaration by the 
 person required to elect showing the intention and the fact of election. 
 
 "(i) Implied; an election being implied when tiie person required to elect, 
 with full knowledge of his rights and of the facts, so deals with the proper- 
 ties as to evince an intention to take one and reject the other." Fetter on 
 Equity, 55,56. 
 
 * Fetter on Equity, 53. ^ 2 Beach, Mod. Eq. Jur., ? 1070. « Idem. 
 
 1 1dem; Turner v. Street, 2 Rand. 404; Collins v. Janey, 3 I^eigh, 389; 2 
 Beach, Mod. Eq. Jur., ?? 1073, 1081; 6 Am. & Eng. Enc. I<aw, 252, 253. 
 
 « 6 Am. & Eng. Enc. Law, 253; 2 Beach, Mod. Eq. Jur. \ 1077. s Idem. 
 
 "> 2 Beach, Mod. Eq. Jur., § 1077; Turner v. Street, 2 Rand. 404; 2 Am. & 
 Eng. Enc. Law, 253, note 4; Fetter on Equity, 57. "In making an election 
 the court will generally select the most valuable property, but in the case 
 of lunatics the court may exercise a sound discretion. Accordingly, where 
 testator's widow had been hopelessly insane for many years, the court elected 
 
676 EQUITY PRINCIPI<ES. 
 
 § 505. Election by a widow between her estate under the 
 law and a testamentary gift in lieu thereof— 
 
 In addition to what has been said in a former chapter of this 
 work/ as to a provision in lieu of dower, we here make some ob- 
 servations as to the principle which requires a widow to make 
 her election between her right of dower and her distributive 
 share of the personalty of her husband and a testamentary pro- 
 vision by way of gift in lieu thereof. If it plainly and clearly 
 appear from the will that the provision therein made for her is in 
 lieu of dower, she must renounce the will, as provided by stat- 
 ate,' or she will be bound by the will and cannot have dower in 
 the husband's estate.' But a testamentary provision in favor of 
 a widow is not to be construed as in lieu of dower, unless it is 
 declared so to be in express terms; or, unless, the intention of 
 the testator to make the provision in lieu of dower, can be as 
 satisfactorily ascertained as though it were expressed, or, the in- 
 tention is so clearly manifest, that the claim of dower would be 
 inconsistent with the wiU, and would defeat and disturb its pro- 
 visions.* 
 
 And the widow has one year from the time the will is ad- 
 mitted to probate in which to renounce the same;* and in a suit 
 to sell land of the testator, because there is not sufficient per- 
 sonal property to pay his debts, and the testator has made pro- 
 visions in his will for his wife in lieu of her dower, no sale of 
 the real estate ought to be directed until twelve months after the 
 probate of the will, as she has all that time within which to elect 
 whether she will renounce the will, unless she sooner make her 
 election.* 
 
 When the husband has made a provision in his will for his 
 wife, a different principle governs as to her distributive share in 
 
 to take a testamentary provision ample for her support, though her statutory 
 interest in her husband's estate was much more valuable; being controled 
 by the consideration that a contrary election would greatly interfere with 
 the entire scheme of the will which contained many bequests for public 
 and charitable' purposes." Fetter on Equity, 57. 
 
 ' Dower, ante, Ch. Xin, § 96. ' Code, chap. 78, sec. 11. 
 
 3 Rutherford v. Mayo, 76 Va. 117; Sherman v. Sherman, 9 W. Va. 50; 
 Douglas V. Feay, i W. Va. 26; 2 Beach, Mod. Eq. Jur., ? 1081; See v. Tower, 
 124 N. Y. 370, 26 N. E. Rep. 948. 
 
 « Douglas V. Feay, supra; Sherman v. Sherman, supra; Wallace v. Wal- 
 lace, 15 W. Va. 722. 
 
 5 Code, chap. 78, sec. ii. " Underwood v. Underwood, 22 W. Va. 303. 
 
EJECTION. 677 
 
 the testator's personalty from that which applies to dower. As 
 we have just seen, she will still be entitled to dower, notwith- 
 standing the testamentary provision, unless it is unquestionably 
 made in lieu of dower; whereas, in order to have her one-third 
 part of the personalty, as to which she takes an absolute estate,^ 
 she must renounce the will within the time and manner prescribed 
 by law;' and this she must do even to share in that part of his 
 personalty undisposed of by his will.' 
 
 § 506. Effect of election when made — 
 
 In order that one may be bound by an election, it must ap- 
 pear that the election was made with a full knowledge of all the 
 facts and circtunstances necessary to enable him to make a judi- 
 cious choice — the party must be informed as to the relative 
 values of the things between which he elects.* 
 
 And if a person has made an election without sufficient infor- 
 mation or under a mistake, he will be relieved against the con- 
 veyances thereof, upon the condition of restoring other persons, 
 whose rights may have been affected by his acts, to the same 
 situation as if such acts had not been performed.' 
 
 But an election made with knowledge of the parties' rights, 
 and of the value and condition of the things between which 
 election is made, is binding on the party and those claiming 
 under him. It is not binding on those having an equal right to 
 elect, or entitled in remainder to the property.' 
 
 In the case of Anderson v. Piercy,^ our supreme court in speak- 
 ing of the effect of renouncing a will by the testator and elect- 
 ing to take under the law, says: "The renunciation of a will by 
 a widow will not be allowed to break up the arrangements of 
 the will, and to disappoint the interest of others under her hus- 
 band's will further than is absolutely necessary. In all other 
 respects, but as regards her, the will ought to be executed as 
 nearly as possible according to the wishes and instruction of the 
 testator. ' ' 
 
 ' Wallace v. Wallace, 15 W. Va. 722. 
 
 ' Noel V. Gamett, 4 Call. 92; Blunt v. Gee, 5 Call. 481; Cocke v. Philips, 12 
 Leigh, 248; Cunningham v. Cunningham, 30 W. Va. 599, 5 S. E. Rep. 139. 
 
 3 Dupree v. Cary, 6 Leigh, 36. 
 
 ■« Hill V. Huston, 15 Gratt. 350; Brazel v. Fair, 26 S. C. 370, 2 S. E. Rep. 
 293; 2 Beach, Mod. Eq. Jur., § 1079. s Hill v. Huston, supra. 
 
 ' 6 Am. & Eng. Enc. Law, 254, 255; Penn v. Guggenheimer, 76 Va. 839. 
 
 1 20 W. Va. 284. 
 
678 BQUITY PRINCIPtBS. 
 
 CHAPTER XLVII. 
 FORFEITURES AND PENALTIES. 
 
 i 507- Jurisdiction in equity and origin thereof as to forfeitures and pen- 
 alties. 
 
 508. Forfeiture in cases of non-payment of rent and breach of covenants 
 
 and conditions. 
 
 509. Whether a sum agreed to be paid upon breach of a condition is 
 
 liquidated damages or a penalty. 
 
 510. Relief as to statutory penalties. 
 
 511. Questions of forfeiture tried at common law cannot be retried in 
 
 equity. 
 
 512. Specific instances of forfeiture wherein relief has or has not been 
 
 granted. 
 
 513. Waiver of forfeiture. 
 
 § 507- Jurisdiction in equity and origin thereof as to for- 
 feitures and penalties — 
 
 Originally, there was in no case any remedy at law against for- 
 feitures or penalties,^ and the only relief which could be obtained 
 was exclusively in a court of equity.' This feature of the law 
 has since been either greatly modified or entirely changed, so 
 that now, in most cases, law affords the same relief as a court 
 of equity, but the latter retains its jurisdiction notwithstanding 
 the more modern concurrent legal remedy, and we here give it 
 its original classification.' It is said by an eminent author* that 
 it is not improbable that courts of equity adopted the doctrine of 
 relief in cases of this sort from the Roman law, where it is found 
 regularly unfolded and sustained upon the clear principles o^ 
 natural justice. 
 
 ' 'Courts of equity were originally founded, among other pur- 
 poses, to relieve against the hardness of courts of common law, 
 and notably to relieve against forfeiture, even where it clearly ex- 
 ists; and very safely it can be said that equity looks with dis- 
 
 ' 2 Story, Eq. Jur. (4th ed.), ? 1301. - Idem. i Idem. 
 
 « 2 Story, Eq. Jur., \ 1317. 
 
FORFEITURES AND PENALTIES. 679 
 
 favor upon forfeitures, and will not be quick, active or alert to 
 see or declare or enforce them. ' '^ 
 
 The power of a court of equity, in cases properly requiring it, 
 will be exercised to relieve a party against forfeitures and from 
 penalties, and this is upon the principle of equity jurisprudence 
 that a party having a legal right shall not be permitted to avail 
 himself of it for the purposes of injustice or oppression." 
 
 § 508. Forfeiture in cases of nonpayment of rent and 
 breach of covenants and conditions — 
 
 Our statute provides that "any person who shall have the right 
 of re-entry into the lands by reason of any rent issuing thereout 
 being in arrear, or by reason of the breach of any covenant or 
 condition, may serve a declaration in ejectment on the tenant in 
 possession where there shall be such tenant, or, if the possession 
 be vacant, by affixing the declaration upon the chief door of any 
 messuage, or at any other conspicuous place on the premises, 
 which service shall be in lieu of a demand and re-entry; and 
 upon proof to the court, by affidavit in case of judgment by de- 
 fault, or upon proof on the trial, that the rent claimed was due, 
 and no sufficient distress was upon the premises, or that the cov- 
 enant or condition was broken before the service of the declara- 
 tion, and that the plaintiff had power thereupon to re-enter, he 
 shall recover judgment and have execution for such land." ' 
 
 ' Brannon, J., in Hukill v. Myers, 36 W. Va. 599, 15 S. E. Rep. 151. In 
 Craig V. Hukill, 37 W. Va. 520, 16 S. E. Rep. 363, Brannon, J., says: 
 "Affirmative relief against penalties and forfeitures was one of the springs 
 or fountains of equity jurisdiction, and the jurisdiction was very early exer- 
 cised; and it would be going in the very opposite direction, and acting con- 
 trary to its essential principles, to affirmatively enforce a forfeiture. The 
 elementary books on equity jurisprudence state the rule as almost an axiom, 
 that equity never enforces a penalty or forfeiture." 
 ' Noyes v. Anderson, 124 N. Y. 175, 26 N. E. Rep. 317. 
 3 Code, chap. 93, sec. 16. This section was construed by our court in 
 Bowyer v. Seymour, 13 W. Va. 12, and as to seeking to obtain possession 
 of the land by a remedy other than that of ejectment, the court lays down 
 this principle: "But if the landlord in such case, instead of availing him- 
 self of the action of ejectment under said i6th section of chapter 93, brings 
 an action of unlawful detainer, he cannot sustain such action, if at all, un- 
 less he proves not only a demand for the rent due at the time, place, and 
 in the manner prescribed by common law in such case, but must also, where 
 a re-entry can be made on the leased premises, or any part thereof, prove 
 such re-entry, or its equivalent, before the commencement of his action." 
 It is decided by our court that the remedy by ejectment to declare and en- 
 
68o EQUITY PRINCIPLES. 
 
 The statute further provides that: "Should the defendant or 
 other person for him, not pay the rent in arrear, with interest 
 and costs, nor file a bill in equity for relief against such for- 
 feiture, within twelve months after execution executed, he shall 
 be barred of all right, in law or equity, to be restored to such 
 lands or tenements."^ 
 
 It will be observed that the statute permits the payment of 
 rent in arrear with interest and costs on the filing of a bill in 
 equity for relief against such forfeiture within twelve months 
 after execution executed, and a failure to do so is a bar to all 
 right to relief. 
 
 On the rehearing of the case of Hukill v. Guffey," the court 
 considers this sectiou of our Code and in so dbing declares that 
 "the true ground of relief against penalties is from the original 
 intent of the case, where the penalty is designed only to secure 
 money, and the court can give by way of recompense all that was 
 expected or desired.' 
 
 Hence equity will not in general, and in the absence of special 
 circumstances, calling for interference, give relief in cases of for- 
 feiture growing out of breach of covenant for repairing, insuring, 
 or doing any specific act, because in such case it is unknown what 
 the measure of damages shall be. Courts of equity will not in- 
 
 force a forfeiture by a lessor is only cumulative, that it is not the only 
 remedy. Guffey v. Hukill, 34 W. Va. 49, 11 S. E. Rep. 754. It is held in 
 this case that a failure to comply with the conditions in an oil lease which 
 stipulates a forfeiture of the lease upon such failure, with no clause of re- 
 entry for such forfeiture, that the release of the same land to a third party 
 avoids the first lease, and that the execution of the second lease is a suf- 
 ficient declaration of forfeiture without demand and entry. In this case, it 
 is held that the second lessee may maintain an action of unlawful entry 
 and detainer against the first and thus enforce the forfeiture. See also 
 Hukill V. Guffey, 37 W. Va. 520, 16 S. E. Rep. 544, and upon rehearing at 
 
 p. 553- 
 
 ' Code, chap. 93, sec. 17. » 37 W. Va. 425, 16 S. E. Rep. 544. 
 
 3 "From a very early period equity would at any indefinite time after a 
 tenant had incurred forfeiture and been ejected for non-payment of rent at 
 a particular time, under a stipulation in his lease, relieve him upon his pay- 
 ing to the lessor the rent accrued due, interest and costs, upon this principle: 
 that, as the right of entry was intended merely as a security for the rent, the 
 lessor thereby received full compensation, and was put in the same situation 
 as if the rent had been paid to him when originally due. This principle was 
 recognized by the legislature, which, however, remedied a palpable injustice 
 by limiting the time within which the lessee might obtain relief by filing a 
 bill." Hukill v. Guffey, supra. 
 
FORFEITURES AND PENAI.TIBS. 68l 
 
 terfere in cases of forfeiture for breach of covenants and condi- 
 tions to do specific things other than the payment of money, for 
 they admit of no just compensation or clear estimate of damages; 
 and it is a universal rule in equity never to enforce either a pen- 
 alty or a forfeiture. Even in a case ' 'where an agreement creates 
 a mere pecuniary obUgation, so that a forfeiture incurred by its 
 breach would ordinarily be set aside, a court of equity will refuse 
 to aid a defaulting party and relieve against a forfeiture, if his 
 violation of the contract, was the result of gross negligence, or 
 was willful and persistent. He who asks help from a court of 
 equity must himself be free from inequitable conduct with respect 
 to the same subject-matter."^ 
 
 Under the principles here laid down, the court in this case 
 holds that where an oil lease running for a definite period within 
 which the lessee was to begin his operations of development but 
 willfully failed to do so, as well also as to pay the commutation 
 money provided for therein, and that two years elapsed after the 
 forfeiture of the lease before any tender or payment of such 
 money, although a bill is filed under this statute within twelve 
 months for relief, it is strongly intimated that such willful and 
 persistent refusal and neglect to perform such condition will be 
 considered in determining whether any relief ought to be granted, 
 although the bill be filed for that purpose within the twelve 
 months. 
 
 The reasoning in this case leads to the opinion that there may 
 be cases of forfeiture, because of the conduct of the plaintiff, in 
 which reUef should be refused under the statute although applied 
 for in time. 
 
 Our statute provides for any mortgagee or trustee of such 
 lands filing a bill for relief for forfeiture thereof, in like manner 
 and with like effect as the owner.' 
 
 509. W^hether a sum agreed to be paid upon breach of a 
 condition is liquidated damages or a penalty — 
 
 We cannot better announce the principles here involved than 
 to adopt the rules formulated by a recent able author relating to 
 
 " Idem, in the court's opinion. 
 
 ' Code, chap. 93, sec. 18. The residue of this statute does not specially 
 concern us here, but it is found in the Code at pp. 710 and 711, beginning 
 with section 19. 
 
682 EQUITY PRINCIPLBS. 
 
 this subject.^ "Where a sum of money is stated to be payable, 
 either by way of liquidated damages or by way of penalty, for 
 breach of stipulations, all or some of which are, or one of which 
 is, for the payment of a sum of money of less amount, the sum 
 stipulated to be paid is treated as a penalty, and only the actual 
 damages can be recovered. 
 
 ' 'Where a lump sum is made payable by way of compensation 
 on the occurrence of one or all of several events, some of which 
 may occasion serious and others but trifling damage, the pre- 
 sumption is that the parties intended the sum to be penal, and 
 subject to modification. 
 
 "Where there is only one event on which the money is to be- 
 come payable, and there is no adequate means of ascertaining the 
 precise damages which may result from breach of the contract, 
 it is perfectly competent for the parties to fix a given amount as 
 liquidated damages in order to avoid the difficulty. 
 
 "Where a contract contains several stipulations of varying im- 
 portance, none of which are of a trifling nature, and the damages 
 for breach of each stipulation are unascertainable, the sum 
 stipulated to be paid will be treated as liquidated damages." 
 
 Where it is stipulated in a note, mortgage or other instrument, 
 that if the interest or different installments of debt as they be- 
 come due and payable, and often insurance or taxes, are not 
 paid the entire debt shall then become due and payable, it is 
 held by the court of appeals of Virginia that such a provision 
 creates a penalty and equity will relieve against it.' 
 
 ' Fetter on Equity, ro8-iio. See also 2 Beach, Mod. Eq. Jur., §J 1014, 
 1016, 1018; 2 Story, Eq. Jur., ?? 1318, etc. 
 
 "It is a principle of universal application that, where a payment of a 
 smaller sum is secured by a larger, the larger sum will be regarded as a pen- 
 alty, the enforcement of which will be relieved against." Fetter on 
 Equity, log. 
 
 "As an application of this principle, it has been held that if a certain rate 
 of interest has been reserved by contract, with an agreement that, if it be not 
 paid punctually, the rate shall be increased, the larger interest is in the nature 
 of a penalty, and may be relieved against in equity. Mason v. Callender, 2 
 Minn. 350 (Gil. 302). But if the larger rate be originally reserved with an 
 agreement for reductton on punctual payment, the condition for such punc- 
 tual payment is part of the contract, and relief cannot be given if it is not 
 fulfilled. NichoUis v. Maynard, 3 Atk. 519; Carter v. Corley, 23 Ala. 612; 
 Adams, Eq- 108, 109." Idem. See 2 Beach, Mod. Eq. Jur., § 1015. 
 ■ ■= Mayo V. Judah, 5 Munf. 495. See Potomac Mfg. Co. v., Evans, 84 Va, 
 717, 6 S. E. Rep. 2. 
 
PORFEITUEBS AND PENALTIES. 683 
 
 This question has been passed upon by so many other courts in 
 the different states, and been decided the other way in so many well- 
 considered opinions, that we do not hesitate to say that the weight 
 of reason and authority is against the conclusion of the Virginia 
 court of appeals; so that we feel confident that if the question 
 should come before our supreme court for decision that such a 
 stipulation in any contract or agreement would be held vaUd and 
 effect given to it according to the intention of the parties.' 
 
 § 510. Relief as to statutory penalties — 
 
 Relief against forfeitures and penalties does not extend to 
 those imposed by statute.^ 
 
 " The reason is that statutory enactments are as binding on 
 courts of equity as on those of law. The distinction between 
 penalties and forfeitures imposed by contract and those imposed 
 by law has always been observed. 'You can never say that the 
 law determined hardly, but you may say that the party has made 
 a hard bargain,' said Lord Macclesfield in the leading case on 
 this subject. It has even been held that a statutory penalty will 
 be enforced by a court of equity, if the case is properly be- 
 fore it.'" 
 
 § 511. Question of forfeiture tried at la\v cannot be retried 
 in equity — 
 
 When the plaintiff has had the question of forfeiture tried in 
 an action at law, he cannot thereafter file a bill in equity to try 
 the same question over and have relief granted him in such new 
 
 ' Jones, Mori., ?? 77, 1180-1182; Milt., Mort. Korec, ?? 43-47; Thomas, 
 Mort., i 228; Nayes v. Clark, 7 Paige, 179, 4 L. ed. (Ch.) 114, and note cit- 
 ing numerous cases; Malcolm v. Allen, 49 N. Y. 448; Bennett v. Stevenson, 
 53 N. Y. 508; Wisner v. Chamberlain, 117 111. 568, 7 N. E. Rep. 68; Swear- 
 inger v. Lahner, 93 Iowa, 000, 26 L. R. A. 766; Morling v. Bronson, 37 Neb. 
 608; Witcher v. Webb, 44 Cal. 127; Horn v. Bennett, 135 Ind. 158, 24 L. R. 
 A. 800; Gates v. Boston & N. Y. A. L. R. Co., 53 Conn. 333, 5 Atl. 695; 
 Parker v. Oliver, 00 Ala. 000, 18 South. Rep. 40; Smith v. McCourt (Colo. 
 App.), 45 Pac. Rep. 239; Kansas Loan and Trust Co. v. Gill, 2 Kan. App. 
 488, 43 Pac. Rep. 991; Hawes v. Detroit Fire and Marine Ins. Co. (Mich.) 
 67 N. W. Rep. 329; Puterbaugh, (Ch.) PI. & Pr. (2d ed.) 440; Robinson v. 
 Loomis, 51 Pa. St. 78; Martin v. Melville, 11 N. J. Eq. 222; Schooley v. Ro- 
 main, 31 Md. 574; Morgan's L. & T. R. Co. v. Texas C. R. Co., 137 U. S. 
 J71, 45 Am & Eng. R. Cas. 631. 
 
 ' Fetter on Equity, ill. ^/dem. 
 
684 BQUITY PRINCIPI,ES. 
 
 suit. The matter of forfeiture is res judicata, and of course 
 cannot be again relitigated.' 
 
 § 512. Specific instances of forfeiture wherein relief has 
 or. has not been granted — 
 
 The principles of the doctrine of equity jurisdiction to grant 
 relief against forfeitures and penalties are best illustrated by the 
 decided cases, some of which we here give. In the following 
 cases relief was granted: Equity will grant relief against for- 
 feiture of a lease for eighteen and one-half years, incurred by a 
 failure of the lessee for two and one-half months to prosecute the 
 work of fitting up the premises for occupation, where during 
 such time he was preparing to have the work done, and was 
 ready to go on with it at the time the lessors entered under claim 
 of forfeiture; and the delay was not willful or made in bad 
 faith; and no demand has been made on the lessee for greater 
 haste, or complaint made on account of the delay; and no injury 
 resulted to the lessors." So equity will grant relief against a 
 penalty to furnish title greater than the value of the land in- 
 volved;' so equity will relieve against a forfeiture for non-pay- 
 ment of money or other matter that admits of accurate and full 
 compensation, provided as a mere penalty for the purpose of en- 
 forcing performance of another and principal obligation, where 
 time is not stipulated as essential;* so where a vendee has de- 
 posited part of the price as earnest money, to be forfeited as 
 liquidated damages in case he fails to fulfill his contract, and he 
 does fail to fulfill it, a court of equity will enforce the vendor's 
 title to the earnest money, since it is not a penalty, but compen- 
 sation for the breach of contract;* and where a vendee who has 
 recorded his contract makes default, and the vendor thereupon 
 declares the contract terminated and the earnest money forfeited, 
 equity in a suit by the vendor to remove the cloud from his title 
 does not, by declaring the contract a cloud, enforce a penalty 
 
 » Hukill V. GufEey, 37 W. Va. 520, i6 S. B. Rep. 544. 
 
 ' Lundiu v. Schoeffel, 167 Mass. 465, 45 N. E. Rep. 933. 
 
 3 Gates V. Parrnly (Wis.), 66 N. W. Rep. 253. 
 
 * Lynch v. Versailles Fuel Gas Co., 165 Pa. St. 326; 30 Atl. Rep. 984. 
 
 s Bucklen v. Hasterlik, 155 111. 423, 40 N. E. Rep. 561. "Where a vendee 
 objects to the vendor's title the latter is not obliged to tender a deed in 
 order to enforce his rights under the contract of sale, since a tender need 
 never be made where it is clear that if made it would be refused." Idem. 
 
FORFBITURBS AND PENALTIES. 685 
 
 ■where neither in the pleadings nor proof was it claimed that the 
 vendor was not damaged to the full amount of the earnest 
 money;' so where a mortgagee covenants with the mortgagor, 
 after the mortgage has become due, not to foreclose during her 
 lifetime, so long as no taxes or assessments on the property re- 
 main unpaid for more than thirty days, the omission of the 
 mortgagor to pay a sewer assessment of which she was not aware, 
 but which she paid as soon as she learned of it, will not subject 
 her to the loss of the benefit of the agreement, as equity will re- 
 lieve her from the forfeiture entailed by her mistake.' But a 
 court of equity will not by way of enforcing a forfeiture divest a 
 vested estate for the breach of a condition subsequent;' and this 
 principle is not modified or changed even if the aid of equity be 
 invoked upon the specific ground that the breach of such condi- 
 tion creates a cloud on the title to the land and the plaintiff 
 specially prays its removal.* 
 
 Where the forfeiture consists in the breach of a covenant, the 
 damages for which are not susceptible of pecuniary measurement, 
 and therefore not compensable, relief will not be granted;*" as 
 where an oil lease provides for the boring for oil within a specified 
 time, and upon failure to do so the lessee is to pay a specified 
 rental, and upon failure of which the lease becomes forfeited, 
 and the lessee complies with neither of these stipulations, equity 
 will not relieve the lessee.' 
 
 § 513. Waiver of forfeiture — 
 
 The right to enforce a forfeiture may be waived either by ex- 
 press language or by acts in effect tantamount thereto.^ Thus, 
 receiving rent with knowledge of the forfeiture, or, as in the 
 case of insurance companies, any acts tending toward the execu- 
 tion of the policy after knowledge of the forfeiture, or accepting 
 proof without objection, constitutes a waiver.* So when, after 
 
 » Harper v. Tidholm, 155 HI. 370, 40 N. E. Rep. 575. 
 » Noyes v. Anderson, 124 N. Y. 175, 26 N. E. Rep. 316. 
 » Craig V. Hukill, 37 W. Va. 520, 16 S. E. Rep. 363; Chute v. Washbume, 
 44 Minn. 312, 46 N. W. Rep. 555. 
 < Douglass V. Union Mut. Ins. Co., 127 111. loi, 20 S. E. Rep. 51. 
 5 Hukill V. Guffey, 37 W. Va. 520, 16 S. E. Rep. 544. 
 ' Hukill V. Guffey, supra. 
 ? 2 Beach, Mod. Eq. Jur., § 1021; Hukill v. Myers, 36 W. Va. 639, 15 S. 
 
 E. Rep. 151. 
 » 2 Beach, Mod. Eq. Jur., J 1021; Hukill v. Myers, supra. 
 
686 EQUITY PRINCIPI,SS. 
 
 forfeiture, a tenant, the lessee, tenders the rent to the lessor, and 
 the latter takes it, not as rents but as compensation for use and 
 occupation after forfeiture, the lessee, however, refusing to ac- 
 quiesce in the condition, it will be deemed that the lessor has 
 waived his right to all forfeitures by the breach of which he has 
 notice, although they were more extensive that he was aware of .^ 
 
 ^ Idem. 
 
I<IBNS. 687 
 
 CHAPTER XLVIII. 
 LIENS. 
 
 I 514. Mechanics' lien — origin, nature and definition of. 
 
 515. Who may claim a mechanics' lien. 
 
 516. Against what persons a mechanics' lien may be asserted. 
 516a. To what property a mechanics' lien will attach. 
 
 517. How a mechanics' lien is created. 
 
 518. The account of the claimant under the mechanics', lien law. 
 
 519. How and by whom mechanics' lien may be enforced. 
 
 520. What should be averred in the bill to enforce a mechanics' lien. 
 
 521. Laborers' liens — origin of and how created. 
 
 522. The extent and character of laborers' liens. 
 
 523. Vendor's lien on the sale of real estate. 
 
 524. Vendor's equitable lien on the sale of real estate. 
 
 525. Release or waiver of the vendor's lien, when properly created. 
 
 526. Lien of vendor upon sale of equitable title. 
 
 527. Time within which a vendor's lien may be enforced. 
 
 528. The bill to enforce a vendor's lien. 
 
 529. As to the enforcement of the vendor's lien. 
 
 530. The statutory lien upon domestic steamers. 
 
 § 514. Mechanics' lien — origin, nature and definition of — 
 
 ' 'A lien is a ligament or tie which binds certain property to a 
 particular debt for its payment or satisfaction." ' 
 
 The mechanics' lien upon real estate and the buildings or other 
 structures erected thereon did not exist at common law, but is 
 purely of statutory creation." "But, soon after the adoption of 
 the federal constitution," says Holt, J., in United States Blow- 
 pipe Co. V. Spencer, cited in the foot-note, "the states commenced 
 to pass statutes creating such liens, in order to encourage the 
 erection of buildings, and the improvement of many town lots 
 and real estate generally. Maryland came first with the act of 
 December 19, 1791; Pennsylvania with the act of April i, 1803. 
 Our first act upon the subject was passed February 21, 1843 
 (Acts 1842-43). See Code, 1849 (ed. i860), p. 567. And for 
 labor done and material furnished, see act 1852 (page 242), local 
 
 ■ United States Blowpipe Co. v. Spencer, 40 W. Va. 700, 21 S. E. Rep. 769. 
 - /dem; Mayes v. Ruffners, 8 W. Va. 384. 
 
688 BQUITY PRiNClPlvES. 
 
 to Alexandria. The whole subject has been of gradual growth; 
 but it has been extended, advanced, and encouraged and method- 
 ized until it now prevails in all the states; and, while each state 
 may have its own mechanics' lien law, which is rarely identical 
 in every particular with that of another, yet all of them, having 
 the same object in view, are, in their main provisions, very much 
 alike, and in some instances mere re-enactments of each other. 
 . . . But our present law, in its main outline, first took defi- 
 nite shape in the Code of 1868." 
 
 The existence of a mechanics' lien is dependent upon statute, 
 and is not created by contract or the consent of the parties. The 
 inability to create a mechanics' lien by contract also renders the 
 land owner unable to waive defects in the contractor's attempted 
 compliances with the lien law, at least, so far as third persons 
 are concerned; and, where a mechanic fails to take the necessary 
 steps to perfect a statutory lien, he is not entitled to an equitable 
 one.' But the amount for which the mechanic is entitled to a 
 lien may be fixed by subsequent agreement." 
 
 A mechanics' lien being of statutory origin, its character, op- 
 eration and extent must be ascertained from the terms of the 
 statutes creating it.' These statutes are designed to give to the 
 mechanic who by his labor and materials enhances the value of 
 property the security of a lien thereon to the extent he has thus 
 added to its value.* The lien is an additional remedy — a statu- 
 tory security — for the price of work done or materials furnished.* 
 It is based upon the assumption that certain persons are unable 
 to protect themselves, and that it is therefore the duty of the 
 state to intervene in their behalf.' Each lien stands on its own 
 footing, every lien holder being entitled to security upon the en- 
 hanced value arising from his work or materials.' 
 
 § 515. AVho may claim a mechanics' lien — 
 
 "Every mechanic, builder, artisan, workman, laborer, or other 
 person, who shall perform any work or labor upon or furnish any 
 material or machinery for constructing, altering, repairing or re- 
 moving a house, mill, manufactory or other building, appurte- 
 nances, fixtures, bridges, or other structure, by virtue of a con- 
 tract with the owner or his authorized agent, shall have a lien to 
 
 • Boisot on Mechanics' Liens, i 5. ' Idem. 3 Idem, i 7. * Idem. 
 
 s Idem. • Idem. 7 Idem. 
 
LIENS. 689 
 
 secure the same, upon such house or other structure, and upon 
 the interest of the owner in the lot of land on which the same 
 may stand or to which it may be removed.' 
 
 And "every material man, workman, laborer, mechanic, or 
 other person, performing any labor or furnishing any material or 
 machinery, under a contract with a principal contractor or his 
 subcontractor, for the construction, alteration, repair or removal 
 of any house or other structure, provided for in a contract be- 
 tween the owner thereof or his authorized agent and such prin- 
 cipal contractor, shall have a lien to secure the payment of the 
 value of the labor performed, and the material or the machinery 
 furnished (not exceeding the price for the same stipulated in the 
 contract between such principal contractor, or his contractor, and 
 such material man, laborer, or mechanic), upon such house or 
 other structure, and upon the interest of the owner in the lot of 
 land on which the same may stand, or to which it may be re- 
 moved. ' ' * 
 
 By virtue of this statute any person who performs any work 
 or labor upon or furnishes material or machinery in the construc- 
 tion or repair of any structure by virtue of any contract with 
 the owner or his agent, is entitled to claim a mechanics' lien. 
 Every person who performs any labor upon or who furnishes any 
 material in the erection of any structure by contract with a 
 principal or his subcontractor is also entitled to this lien.' 
 
 The person who wishes to assert a mechanics' lien must bring 
 himself clearly within the provisions of the law. Thus the right 
 of a contractor to this hen cannot be extended beyond a contract 
 made with a subcontractor in the first degree.* 
 
 The lien of a material man in the third degree is subject to a 
 double limitation. It cannot exceed the amount due, or to be- 
 come due, from the owner to the original contractor when the 
 lien accrued, nor can it exceed the amount due or to become due 
 from the original contractor to the subcontractor.' Where the 
 statute expressly creates liens in favor of those furnishing mate- 
 
 ' Code, chap. 75, sec. 2. ' Idem, sec. 3. 
 
 3 Code, chap. 75, sees. 2 and 3. 
 
 * McGugan v. Ohio River R. Co., 33 W. Va. 135, 10 S. E. Rep. 39; Boisot 
 on Mech. Liens, ? 353. That this law must be strictly construed, see McGu- 
 gan V. O. R. R. R. Co., supra; Richardson v. N. & W. R. Co., 37 W. Va. 641, 
 17 S. E. Rep. 195- 
 
 s Boisot on Mech. Liens, § 255. 
 
690 BQUITY PRINCIPLSS. 
 
 rials to subcontractors, it makes no difference that the materials 
 for which a lien is claimed were furnished on the personal credit 
 of the subcontractor.^ 
 
 Statutes that allow mechanics' liens to "any person" entitle 
 private corporations to such liens, the same as natural persons; 
 as, for example, a statute giving a lien to "any person or 
 persons who shall hereafter, as laborer, mechanic, merchant, 
 or trader," perform labor or furnish materials toward the per- 
 formance or completion of any contract. And a statute giv- 
 ing a lien to "any machinist" is broad enough to include a cor- 
 poration engaged in the making and repairing of machinery.' 
 It is necessary, however, that the subject-matter of the lien claim 
 should be within the scope of the corporate powers of the claim- 
 ant. Therefore a corporation organized for the purpose of "man- 
 ufacturing and selling lumber" cannot hold a lien for labor per- 
 formed in the construction of a building.' 
 
 A foreign corporation has the same right to a mechanics' lien 
 as a domestic one.' But a municipal corporation cannot claim a 
 mechanics' lien.^ 
 
 § 516. Against what persons a mechanics' lien may be 
 asserted — 
 
 Our law provides* that the lien attaches against the "owner" 
 of the property as to which the labor was done or material fur- 
 nished. It is therefore important that we notice briefly the 
 principles determining who is the "owner" within the meaning 
 of the mechanics' lien law. The person against whom the lien 
 is claimed need not be the absolute owner;' but one holding less 
 than the fee is an owner only to the extent of his interest, and 
 no lien can be created by a contract with him that will extend 
 beyond such qualified interest.* 
 
 Of course, if he who assumes to act as owner has no title, 
 there can be no lien. Therefore no lien can attach to a building 
 erected by an insurance company in fulfillment of a contract to 
 rebuild after a loss by fire, under a contract made with the com- 
 pany, because such company is not the owner of the ground.' 
 A corporation is not an owner of land which it has taken but for 
 which it has not made compensation. '" 
 
 ' Boisot on Mech. Uens, § 255. ' Idem, \ 257. 3 Idem. • Idem. 
 
 "Idem. ' Code, chap. 75, sec. 2. 'Boisot on Mech. Liens, § 264. 
 
 ' Idem. 9 Idem. " Idem. 
 
LIENS. 691 
 
 A mortgagor in possession and before breach of the condition 
 of the mortgage is the owner in spite of the mortgage. The 
 mortgagee in such case is not the owner. ^ And a deed of trust 
 is in this respect the same as a mortgage. But the mortgagor 
 can only burden his equity of redemption with the mechanics' 
 liens.' 
 
 Where land is owned by two or more persons, whether as ten- 
 ants in common or otherwise, and the contract is made with but 
 one of them only, the lien will only attach to the interest of that 
 one,' unless the land is owned by copartners, in which event a 
 contract by one of them in the name of the firm binds the entire 
 property.* 
 
 There can be no mechanics' lien on the real estate of a married 
 woman when she has not a separate estate therein.^ 
 
 Prior to the amendment and re-enactment of our married 
 woman's law by the act of 1893,° there could be only a mechan- 
 ics' lien on the rents, issues and profits of her separate real 
 estate.^ 
 
 But under this law as amended, and as it now is under the 
 provisions of section fifteen of chapter three of the Acts of 1893, 
 which authorizes the creation of a lien upon the corpus of her 
 separate estate, we doubt not that a mechanics' lien may be 
 created against the separate real estate of a married woman as if 
 she were 2^ feme sole} 
 
 Under statutes that give liens for work or materials furnished 
 by virtue of a contract with the owner of the land, a mechanics' 
 lien cannot be created upon the land of a married woman for 
 work done or materials furnished in improving such land under 
 a contract with her husband, where the husband acts merely for 
 himself. The mere fact that the wife knew about the matter 
 usually makes no difference.' In order to create a lien, she must 
 do some act that would make her personally liable if she were 
 unmarried. Her mere failure to dissent from the contract will 
 not import an intention to bind her estate in payment for the 
 debt.'" And the fact that after the claim was filed she signed a 
 note with her husband for the debt does not make the lien 
 
 » Idem, \ 265. ' Idem. ^ Idem, \ 266. < Idem, \ 268. 
 
 5 C. L. & M. Co. v. Bfockmyer, 18 W. Va. 587. 
 
 • Acts of 1893, chap. 3, pp. 6-9.. ' C. L. & M. Co. v. Brockinyer, supra. 
 ' See Boisot on Mech. Liens, 2 270. » Idem, I 276. ■» Idem. 
 
692 EQUITY PRINCIPLES. 
 
 good.' Nor does it make any difference that the lien is claimed for 
 necessary repairs.' Where, however, the husband is in fact the 
 agent of the wife, he can make a contract for her that will sup- 
 port the lien; and general authority to do business for her is 
 sufficient.' 
 
 There can be no mechanics' lien against the land of minors, 
 because of their inability to make a contract necessary to sup- 
 port such lien.* 
 
 The property of private corporations is subject to mechanics' 
 liens just as that of individuals.' But there can be no lien 
 against a public corporation — ^that is, against any municipal cor- 
 poration." 
 
 A party in possession of real estate under a bond for the exe- 
 cution of a deed therefor, will be deemed the owner for the pur- 
 poses of a mechanics' lien on the land to the extent of his inter- 
 est only.' The interest of the vendor cannot be subject to the 
 mechanics' lien unless the mechanic contracted with him, or 
 unless the vendee acted as the vendor's agent in making the 
 contract.' 
 
 In cases where the land is occupied by a tenant or lessee, such 
 occupant is not by reason of that relation the agent of the owner 
 so as to make a contract that will support the lien.' In such 
 
 ' Idem. ' Idem. ' Idem, \ 277. * Idem, \ 282. 
 
 s Chapman v. Brewer (Neb.), 62 N. W. Rep. 320. "A mechanic's lien will 
 not attach to the property of a corporation subsequently formed for the con- 
 struction of a building under a contract with the subcribers for the stock of 
 such corporation, where the liability of each subscriber was limited to the 
 amount of his subscription." Davis & R. Bldg. & Mfg. Co. v. Murray, 102 
 Mich. 217, 60 N. W. Rep. 437. 
 
 « Hicks V. Roanoke Brick Co., 94 Va. 741, 27 S. E. Rep. 596. "It is con- 
 trary to public policy to allow a lien to be acquired upon public property, 
 and the mechanic's lien laws do not apply to public buildings or structures 
 erected by states, cities, and counties for public uses, unless the statute cre- 
 ating the hen expressly so provides." Idem. See also Bd. Ed. Salt Lake 
 City V. Salt Lake Pressed Brick Co. (Utah), 44 Pac. Rep. 709; City of To- 
 peka V. Thomas, i Kan. App. 113. 
 
 ' C. L. & M. Co. V. Brockmyer, 18 W. Va. 586; Nat. Bk. Jacksonville v. 
 Williams, 38 Fla. 305, 20 So. Rep. 931. 
 
 ' Idem.. 
 
 » Moore v. Vaughn, 42 Neb. 696, 60 N. W. Rep. 914; Massow v. Fife, 10 
 Wash. 528, 39 Pac. Rep. 140. 
 
LIBNS. 693 
 
 case, the lien attaches to the interest of the lessee only.' Me- 
 chanics' liens are subordinate to vendors' liens.' 
 
 § 516a. To what property a mechanics' lien will attach— 
 
 The statute provides that the lien shall extend to and embrace 
 the house or other structure which has been constructed, altered, 
 repaired or removed, and the interest of the owner in the lot of 
 land on which the same may stand or to which it may be re- 
 moved.^ 
 
 It is plain that the lien covers any house or other structure 
 with reference to which any work has been done or material fur- 
 nished. Of course the word house has a restricted meaning, but 
 the term structure, in the full sense of the word, means any thing 
 joined together, built or constructed. It includes any thing that 
 can be attached to the realty.* The lien not only extends to the 
 land on which the structure stands or to which it has been re- 
 moved, according to the very terms of the statute, but also to 
 sufficient land beyond that to enable the property to be properly 
 used and enjoyed.^ "As a general rule, more land than the 
 tract on which the building stands cannot be sold to enforce a 
 mechanic's lien. But a mechanics' lien upon a 'building or 
 structure, and upon the interest of the owner thereof in the lot 
 of land upon which the same is situated,' has been held to in- 
 clude several adjoining lots inclosed by a common fence, and used 
 and controlled by the owner of the building for one common and 
 avowed purpose.' It is necessary, however, in such case, to 
 
 » Moore v. Vaughn, supra. 
 
 ' C. L- & M. Co. V. Brockmyer, supra. ' Code, chap. 75, sec. 2. 
 
 < Giant Powder Co. v. Oregon Pac. R. Co., 8 I,. R. A. 700, 704, 705; Porkes 
 V. Willamette Falls Elec. Co., (Or.), 23 Pac. Rep. 670. 
 
 5 Eoisot on Mechanic' Liens, § 162. 
 
 ' Idem, \ 164. "A larger amount of land may be included within the lien 
 in the country than in the city, but no definite rule as to the amount that 
 may be included seems to have been generally adopted. It has been held 
 that where two adjoining tracts of land, comprising respectively 22 and 
 88 acres, belong to the same owner, a lien for improvements on the 
 smaller tract could not affect the larger one; and it has also been held that 
 the lien could not embrace an entire farm of 160 acres. On the other 
 hand, it has been held that a statute giving a lien on the building, 'with 
 the land on which the same may stand,' justified a lien on the farm of 850 
 acres for erecting a creamery, silo, barn and a cow stable, all near to each 
 other, occupying a lot in the interior of the farm, and that, under a statute 
 declaring a mechanic's lien shall be a lien on the lot or tract of land on 
 
694 EQUITY PRINCIPLES. 
 
 show that all the lots were used as one.' And where material is 
 furnished for a building erected on two lots and is used on both, 
 the lien attaches to both lots. ' ' ' 
 
 The lien, it is said, may attach to the building alone apart from 
 the land where the right to the lien fails for some cause not the 
 fault of the lien claimant, and the method of enforcing it is to 
 sell the building and allow the purchaser to remove it from the 
 land.' But under our statute, there can evidently be no hen 
 against the property, unless the party making the contract with 
 the mechanic or material man owns the land upon which the 
 structure stands or to which it is moved; that is, has an interest 
 therein arising to the dignity of the subject of ownership.* 
 
 The lien not only attaches to the realty itself, but all fixtures 
 that may be properly treated as a part of it, such as gas-fixtures, 
 a boiler in a brew-house, the engine of a steam saw-mill, the mill- 
 stones in a flouring-mill, the permanent stage of a theater, a 
 drain-pipe leading from the building to the city sewer, and poles, 
 wires, lamps and other attachments for electric lighting.* But 
 nothing is the subject of a mechanics' lien that does not become 
 a part of the real estate.* 
 
 One furnishing building materials under a general contract 
 covering a number of houses is entitled to a lien for any amount 
 
 which the erections are made, there is no error in making the lien for the 
 erection of two buildings on a United States survey of 400 acres extend to 
 the entire tract." Idem, ? 165. 
 
 "The house being upon an undivided and entire tract of 80 acres in 
 the country, the mechanic's lien was upon the whole tract, especially as it 
 is found as a fact and it is not denied, that the 'house alone would be of 
 comparatively little value, as no one would wish the house apart from the 
 land.' It was no segregation or division of the house from the tract that 
 'the house and improvements were inclosed in a fence including about three 
 acres.' The lien is on the whole tract, but it should be divided, if practi- 
 cable, and desired by the defendant, in making sale, and the parts sold in 
 such order as the homesteader may elect, so that it may be the lien, will be 
 discharged without exhausting the tract, and the part preferred by the 
 debtor not subjected to sale." Broyhill v. Garther, 119 N. C. 443, 26 S. E. 
 Rep. 31. 
 
 ' Idem. ' Idem. 
 
 ' Boisot on Mechanics' Liens, §? 182, 183. 
 
 * Front Steel Cable R. Co. v. Johnson, 2 Wash. 112, 11 L. R. A. 693. 
 
 5 Boisot on Mech. L., I 213. 
 
 ' Asheville Woodworking Co. v. Southwick, 119 N. C. 611, 26 S. E. Rep. 
 253. 254- 
 
LIENS. 695 
 
 due him against all tlie houses, and the burden of proving that 
 thesTight to such a lien has been released or waived as to any par- 
 ticular house rests on the owner.' 
 
 And under the Code of Virginia, which is almost identical 
 with our own, it is held that "a subcontractor, who furnishes 
 materials for the construction of two houses erected under a 
 single contract on lots on opposite sides of a street, has a joint 
 lien on both houses and lots for the entire amount of ma- 
 terials furnished for both houses.' But where building ma- 
 terial has been ordered for the construction of several houses on 
 a certain tract of land, which, before all of the material has been 
 delivered, or a lien filed, is subdivided according to the number of 
 houses, the lien must be apportioned and charged pro rata against 
 the houses.'" As we have already seen, public corporations can- 
 not contract so as to create a mechanic's lien.* Hence the public 
 buildings of a county are wholly exempt from the operation of a 
 mechanics' lien law.' 
 
 A question that has been often considered by the courts is 
 whether or not a general mechanics' lien law appUes to railroads. 
 On this point a recent author says, inasmuch as railroads are 
 public highways, it would be highly injurious to have them in- 
 terfered with, and that, therefore, it has been held with almost 
 complete unanimity, that the mechanics' lien laws will not ex- 
 tend by implication so as to include railroads.* 
 
 It seems to us that whether a mechanics' lien law includes 
 the property of a railroad company, ought to be determined by 
 the words of the statute, and not on the ground that railroads 
 are public highways, and are, therefore, not impliedly embraced 
 by such law. A railroad company is merely a common carrier, 
 possessing the powers which have been conferred upon it by law, 
 and as such required to discharge the duties imposed upon it in 
 like manner. 
 
 "A railway is nothing but private property devoted to public 
 use, the same as a warehouse, and is so far and no farther the 
 
 ' Maryland Brick Co. v. Dunkerly, 85 Md. 199, 36 Atl. Rep. 761. 
 
 ' Sergeant v. Denly, 87 Va. 206, 12 S. E. Rep. 402. 
 
 3 Blanchard v. Fried, 162 111. 462, 44 N. E. Rep. 880. '•Ante, § 515 . 
 
 5 Hall's Safe and Lock Co. v. Scites, 38 W. Va. 691, 18 S. E. Rep. 895; 
 Bnow V. Board Com'rs Durham Co., 112 N. C. 335, 17 S. E. Rep. 176; Hovey 
 V. East Providence, 17 R. I. 80, 9 L. R. A. 156. 
 
 « Boisot on Mech. Liens, § 188, citing several cases. 
 
696 EQUITY PRINCIPI,ES. 
 
 subject of public policy. The owner, be lie a natural person or 
 a private corporation, can disuse or dispose of it, in whole or in 
 part, at his or its pleasure."^ 
 
 If it be because the railroad is a public highway and ought 
 not to be molested by mechanics' lien claimants, upon the same 
 ground why should it be sued for private injury and judgment 
 obtained against it as if it were a private person or corporation? 
 
 Our statute' names persons and corporations as being amenable 
 to an action for wrongful act or neglect resulting in death with- 
 out mentioning railroads. So this law must be applied to them 
 by implication in order to maintain a suit against them. 
 
 The word ' 'owner' ' embraces corporations according to all the 
 authorities and decisions.' Should not railroad corporations, 
 then, be included? But evidently whether they are or not de- 
 pends on the words of the statute. 
 
 The language of our statute is that it attaches when the labor 
 has been done or the material furnished in the construction, 
 alteration, repair, or removal of a house, mill, factory, other 
 building, appurtenances, bridge or other structure. This is a 
 very comprehensive law, and under the authorities cited in the 
 foot-note is broad enough to embrace railroad property.* 
 
 Its applicability to such property must turn upon the true 
 meaning of the word structure, as used in our statute, and our 
 view of this law is, in the light of well-considered cases cited in 
 the foot-notes, that it includes the property of a railroad corpo- 
 ration.' 
 
 ' Giant Powder Co. v. Oregon Pac. R. Co., 8 L. R. A. 700, 706. 
 
 ' Code, chap. 103, sec. 5. 
 
 ' See Boisot on Mech, Liens, §? 284-287, and the numerous cases cited. 
 
 * Giant Powder Co. v. Oregon Pacific R. Co., supra; Dunavant v. Cald- 
 well & N. R. Co., (N. C), 29 S. E. Rep. 837; Forkes v. Electric Co., 
 19 Or. 61, 23 Pac. Rep. 670; Helm v. Chapman, 66 Cal. 291, 5 Pac. Rep. 352; 
 Central Trust Co. v. Sheffield & B. C. I. & Ry. Co., 42 Fed. 106; Smith 
 Bridge Co. v. Burman, 41 Ohio St. 37; Vanderpool v. La Cross & M. R.nCo., 
 44 "Wis. 652; Purtell v. Chicago F. & B. Co., 74 Wis. 132; Botsford v. New 
 Haven M. & W. Co., 41 Conn. 143; Hill v. La Crosse & M. R. Co., 11 Wis. 
 214; Dunavant v. Caldwell & N. R. Co., 122 N. C. 999, 29 S. E. Rep. 837. 
 
 s For the manner of recording a mechanic's lien and how to enforce the 
 same against a railroad company, we append the following extract from the 
 ' opinion of the court in Farmer's I<oan & Trust Co. v. Canada & St. L. R. 
 Co., 127 Ind. 250, II L. R. A. 740: "The next question open to discussion 
 and requiring decision is as to the extent of the lien of the laborers and ma- 
 terialmen. In order to properly consider this question- it is necessary to 
 
WENS. 697 
 
 § 517. How a mechanics' lien is created — 
 
 There are two essential requisites to the creation of a me- 
 chanics' lien, the first of which is that the claimant must have 
 performed the work or furnished the material stated in the 
 statute, by virtue of a contract with the owner or his authorized 
 
 state the facts from which it emerges. The laborers and materialmen did 
 work upon and furnished material for a part of the railroad, and filed notices 
 of liens. The railroad extends through several counties, and is a continu- 
 ous line from a point in this state to a point in the State of Michigan. The 
 contention of the appellant is that the railroad is an entirety, and that 
 as notices of liens were not filed in all the counties no such lien was ac- 
 quired as entitles the appellees to share in the fund derived from the sale 
 of the entire road. We fully agree with the appellant's counsel that a con- 
 tinuous line of railroad is to be treated as an entirety, and we adjudge that 
 as such it must be sold, for it would be unjust to the lien holders as well as 
 to the railroad company to sell a bridge, culvert, or a few rods, or even miles 
 of the track of the railroad. Midland R. Co. v. Wilcox, 122 Ind. 84; I<ouis- 
 ville N. A. & C. R. Co. v. Boney, 117 Ind. 501, 3 L,. R. A. 435; MuUerv. 
 Dows, 94 U. S. 444, 24 L. ed. 207. 
 
 "But it by no means follows that, because the entire road must be sold, it 
 is necessary that a lien should be acquired on every part of it. The right 
 to enforce the lien necessarily requires a sale of the road, since it cannot be 
 sold in fragments; but neither the right to the lien nor the mode of acquir- 
 ing it is affected by this consideration. The acquisition of a lien results 
 from a compliance with the requirements of the statute and is not affected 
 by the consequences which flow from its acquisition. If the claimant does 
 what the statute requires he obtains a lien, and in order to enforce the lien 
 the law declares what shall be done; but over the question of enforcement 
 the lienor has no control. If he obtains a lien in the authorized mode he 
 has a right to have it enforced as the law directs, and not otherwise. The 
 claimant must undoubtedly do what the statute commands, but when he 
 does this his right is complete, and subsequent considerations affect the mode 
 of procedure, not the substantive right to a lien. The decisions in Dano v. 
 M. & O. R. R. R. Co., 27 Ark. 564; Cox v. Western Pac. R. Co., 44 Cal. 18, 
 47 Cal. 87; Knapp v. St. Louis, K. C. & N. R. Co,. 74 Mo. 374, and Cranston 
 V. Union Trust Co., 75 Mo. 29 — are relevant to one branch of our discussion, 
 for they affirm that a railroad must be treated as an entirety; but they are 
 not relevant to the question whether a lien filed in one county entitles the 
 lienor to invoke judicial aid for the enforcement of his right. They do not 
 determine whether or not a lien may be acquired that will entitle the holder 
 to enforce it although it is acquired by filing notice in only one county. 
 There seems to have been no authoritative decision of the question in Boston 
 V. Chesapeake & O. R. Co., 76 Va. 180, although the reasoning of the court 
 indicates that it was inclined to the opinion that notice must be filed in 
 every county traversed by the road. We cannot assent to this reasoning as 
 it would break down the policy of our laws protecting laborers to require 
 them to file notices in every county, for laborers whose claims were small 
 
698 EQUITY PR1NCIPI,BS. 
 
 agent.' This contract may be either express or implied,^ but 
 in the absence of a contract there can be no lien against the 
 property.' 
 
 The other requisite is the filing in the clerk's office of the 
 county wherein the property against which the lien is claimed 
 is situated a just and true account of the amount due the claim- 
 ant after allowing all credits, together with a description of the 
 property intended to be covered by the lien, sufficiently accurate 
 for identification with the name of the owner or owners if known; 
 which account shall be sworn to by the claimant or some one in 
 his behalf.* 
 
 The filing of this account within the time and in the office 
 specified is essential to the preservation of the lien, and a failure 
 to do so will operate to discharge such lien.* 
 
 The preparation of this account should be attended with great 
 
 could not afford to file notices all along the line of the railroad. The conse~ 
 quence to which the reasoning would lead goes very far to prove it unsound. 
 If it be true that notices must be filed along the entire line, then it must 
 also be true that the laborer must follow the railroad throughout all the 
 states it traverses, even if it extended from seaboard to seaboard across the 
 entire country; and surely it cannot be legally possible that he must pursue 
 such a course. It seems clear to us that if a lien is acquired in any county 
 as the law directs, it is enforceable as the law provides. If there is a lien 
 against any part of the railroad it is enforceable against the entire road, be- 
 cause all the road must be sold. But there is none the less a lien on this 
 account. The acquisition of the lien is one thing, and the mode of enforce- 
 ment another, and it does not follow that to acquire a lien the mode of en- 
 forcement must control the proceedings of the lienor, for with the question 
 of enforcement he has no immediate concern until there is need of judicial 
 assistance. The acquisition of the lien comes first; the question of its en- 
 forcement is another and subsequent consideration. The principle we en- 
 force is not a novel one; it is almost as old as the common law itself, for it 
 is involved wherever there is a lien for repairs upon personal property of an 
 individual nature. In all such cases the entire thing must be sold, although 
 the mechanic has improved or repaired only an insignificant part of it." 
 
 ' Code, chap. 75, sec. 2. 
 
 ' Nicholson v. Nicholson, 115 N. C. 200, 20 S. E. Rep. 294; Thompson v. 
 Taylor, no N. C. 70, 14 S. E. Rep. 518. 
 
 ' Nicholson v. Nicholson, supra; Thompson v. Taylor, supra. 
 
 * Code, chap. 75, sec. 4. 
 
 s Boston & Co. V. C. & O. R. R. Co., 76 Va. 182, 183; Shackleford v. Beck, 
 80 Va. 576, 577; Campbell v. Jacobson, 145 111. 389, 34 N. E. Rep. 39. 
 
WBNS. 699 
 
 care and caution, as an omission of any of its feature invalidates 
 the lien.^ This account must show four thing: 
 
 (i) The just and true amount due the lienor after allowing 
 all credits. 
 
 (2) A description of the property intended to be covered by 
 the lien sufficiently accurate for identification. 
 
 (3) The name of the owner of the property, if known. 
 
 (4) That it has been sworn to by the claimant or by some one 
 in his behalf.' 
 
 § 518. The account of the claimant under the mechanics' 
 lien la-w — 
 
 As we have just seen,' there are four requisites to the validity 
 of the account to be filed under our mechanics' lien law by the 
 lien claimant, the first of which is that it must be in such 
 form as to show the just and true amount due the claimant after 
 allowing all credits. 
 
 This provision contemplates an itemized account, showing the 
 work done and material furnished, together with the credits, if 
 any;* unless the work was done as an entirety at a specified 
 price, when it is only necessary then to set this out in the ac- 
 count.' The account should also show the amount due. This is 
 all important and vital to the validity of the lien.^ 
 
 The property must be described so as to be capable of iden- 
 tification. 
 
 There is great reluctance on the part of the courts to set aside 
 a mechanics' lien merely for loose description of the property in 
 the lien claim. The description of property upon which a me- 
 chanics' lien is sought to be enforced must be sufficient for a 
 person famiUar with the locality to identify it, and if a descrip- 
 tion of real estate is true in every respect, and no other property 
 answers to such description, and the property may easily be 
 
 'United States Blowpipe Co. v. Spencer, 40 W. Va. 698, 21 S. E. Rep. 
 769; Central City Brick Co. v. N. & W. R. Co., 44 W. Va. 286, 28 S. E. Rep. 
 926; Stout V. Golden, 9 W. Va. 231; Mayes v. Ruffners, 8 W. Va. 384. 
 
 ' United States Blowpipe Co. v. Spencer, supra. » Anie, ? 517. 
 
 * Shackleford v. Beck, supra; Taylor v. Netherwood, 91 Va. 88, 20 S. E. 
 Rep. 888; Boisot on Mechanic's Liens, ?? 395, 414. "The claim should 
 specify the nature and character of the work ormaterials for which the lien 
 is claimed." Boisot, Mech. L., ? 395- 
 
 s Taylor v. Netherwood, supra. * Boisot on Mechanic's Liens, J 409. 
 
700 EQUITY PRINCIPLES. 
 
 found by one who may be acquainted with such description and 
 with the facts which exist, and which may easily be ascertained 
 upon inquiry, the discription is complete.^ It is also said that a 
 description in a claim of lien should be as definite as in a deed or 
 mortgage, and accordingly a description that would be sufficient 
 in a conveyance will be good in a lien claim.* As to what is a 
 sufficient description of property in a deed we have already con- 
 sidered.' 
 
 The name of the owner, a further requisite of the account, 
 must be directly and positively designated, if known. A state- 
 ment of the owner's name merely incidentally, and as part of the 
 description of the property, is insufficient.* 
 
 The name of the owner must be stated as of the time of filing 
 the account.* If the name of the owner is not known, that 
 fact should be stated, and the name of the reputed owner given.' 
 
 The fourth and last requisite of the account is that it be prop- 
 erly sworn to. If the claimant himself swears to the account, it 
 is sufficient if a notary public certifies that he "made oath to the 
 correctness of the account." ' 
 
 This is an element essential to the creation of the lien, and, to 
 be effectual, must be in writing, as a part, in some way, of the 
 paper writing filed for record.* If such affidavit be made before 
 any officer of another state or county, such as the District of 
 Columbia, it is not duly authenticated for record until it is sub- 
 scribed to by such officer, and there be annexed thereto a certifi- 
 cate of the clerk or other officer of a court of record of such state 
 or county, under an official seal, verifying the geuineness of the 
 signature of the first-mentioned officer, and his authority to ad- 
 minister an oath.' 
 
 ' Boisot, Mech. L., ? 431. » Idem. ' Ante, AtT^-' 
 
 * Jones on Wens, Vol. 2, § 1397, citing Rugg v. Hoover, 28 Minn. 404-7; 
 Malter v. Falcon M. C, 18 Nev. 209; Beales v. Congregation, i E. D. Smith 
 (N. Y.), 654-7; Mayes v. Ruffners, 8 W. Va. 384-6. See also Phillips on 
 Mechanic's Liens (3d ed.), \ 345, and authorities there given. 
 
 5 Corbett v. Chambers, 109 Cal. 178; Willamette Steam Mills L. & Mfg. 
 Co. V. McLeod (Or.), 40 Pac. Rep. 93 (decided in 1895); Lefler v. Forsburg 
 (D. C. App.), 21 Wash. L. Rep. 585, i App. D. C. 36. 
 
 ' Malter v. Falcon Min. Co., i8 Nev. 209. 
 
 1 Taylor v. Netherwood, 91 Va. 88, 20 S. E. Rep. 888. 
 
 ' Lockhead v. Berkeley Springs Water-works & Imp. Co., 40 W. Va. 553, 
 20 S. E. Rep. 1031. 
 
 » Idem. 
 
WBNS. 701 
 
 The principle or rule may be stated to be that the account re- 
 quired to be filed in the clerk's office of the county court must 
 contain a true account, and furnish its own explanation without 
 reference to other papers or contracts.^ 
 
 § 519. HoAV and by whom mechanics' lien may be en- 
 forced — 
 
 Our statute provides that any person having a mechanics' lien 
 may enforce the same by a suit in chancery in the circuit court 
 of the county wherein his account is filed.' And unless such 
 suit is commenced within six months after the filing of the ac- 
 count required by statute, the lien shall be discharged; "but a 
 suit commenced by any person having such lien shall, for the 
 purpose of preserving the same, inure to the benefit of all other 
 persons having a Uen under this chapter on the same property." ' 
 This statute is imperative as construed by our court, and unless 
 the suit is brought within six months the lien shall be dis- 
 charged.* 
 
 If the suit is not begun in time, the Hen is irretrievably lost, 
 and the time for the bringing of such suit cannot be extended by 
 agreement of the parties;* nor by reason of the insolvency of the 
 debtor, nor because he prevented the completion of the contract.® 
 
 The obtaining of a personal lien will not preserve the lien, nor 
 can an old lien be revived by tacking a new one thereto.^ 
 
 A mechanics' lien may be enforced by an assignee thereof, as 
 well as by the original claimant." And the right to enforce the 
 lien is not affected by the acceptance of negotiable notes for the 
 amount of the account, provided the notes are not made payable 
 after the time fixed by law within which suit must be brought to 
 enforce the lien.* 
 
 ' Foster v. Wrefing, 20 Mo. App. 85. 
 
 = Code, chap. 75, sec. 10. ' Idem, sec. 11. 
 
 « Opinion of Snyder, J., in Phillips v. Roberts, 26 W. Va. 783, at p. 784. 
 The court in this case holds that, because the suit was not brought within 
 the time required by law, the plaintiff at the time he brought his suit had 
 no lien, and that the bill should therefore have been dismissed by the court 
 below. 
 
 5 Boisot on Mechanic's I<iens, \ Ti\. " Idem. ? Idem. 
 
 « Bristol Iron and Steel Co. v. Thomas, 93 Va. 396, 25 S. E. Rep. no; 
 laege v. Bossieux, 15 Gratt. 83. 
 
 9 Cushwa V. Imp., Loan and Building Ass'n, 45 W. Va. 490, 32 S. E. Rep. 
 259. 
 
702 EQUITY PRINCIP]:,BS. 
 
 § 520. 'What should be averred in the bill to enforce a 
 mechanics' lien — 
 
 While suits to enforce mechanics' liens are somewhat anoma- 
 lous in character, they have nearly always been brought in 
 equity;^ and, as our statute so expressly provides, the suit is car- 
 ried on with all the rights incident to that court's principles and 
 rules, and its methods of procedure. ' 
 
 The prime or cardinal rule governing the preparation of bills 
 to enforce mechanics' liens is that it must contain sufficient aver- 
 ments to show, on its face, that the claimant has taken the steps 
 necessary to the creation of the lien, and that the suit has been 
 brought to enforce it within the proper time.' 
 
 Giving in a general way the various essential allegations of the 
 bill, it should aver the ownership of the property, against which 
 the lien is sought to be enforced, at the time the work was per- 
 formed or material furnished;* that the work was done or ma- 
 terial furnished in pursuance of a contract with [the owner or 
 his authorized agent, to be used in constructing, altering, repair- 
 ing or removing the house, mill, manufactory, or other building, 
 appurtenances, fixture, bridge, or other structure, on the prop- 
 erty described;' a description of the property against which the 
 lien is claimed;* but if attached as an exhibit to the bill is a 
 mortgage or other paper in which is particularly described the 
 property on which the lien is claimed, this will be a sufficient 
 description.' 
 
 ' I Pomeroy's Eq. Jur., §? 171, 1269; Miller v. Bergenthal, 50 Wis. 474. 
 
 » United States Blowpipe Co. v. Spencer, 40 W. Va. 698, 21 S. E. Rep. 
 769. 
 
 3 2 Jones on Liens, § 1588; Phillips on Mechanic's Liens (3d ed.), | 402; Mc- 
 Gugin V. Ohio R. R. Co., 33 W. Va. 63, 10 S. E. Rep. 36; Phillips v. Roberts, 
 26 W. Va. 783; Cra-wfordsville v. Boots, 76 Ind. 34. 
 
 * Adams v. Buhler, 116 Ind. 100, 18 S. E. Rep. 269; Neeley v. Searight, 113 
 Ind. 316, 15 N. E. Rep. 598. 
 
 5 Idem; Central City Brick Co. v. Norfolk & W. R. Co., 44 W. Va. 286, 28 
 N. B. Rep. 926. 
 
 * Boisot on Mechanic's Liens, g 535. 
 
 "The description should be at least as accurate as that required in a claim, 
 and there are some authorities that hold that a description which would be 
 good in a claim may not be sufficient in a complaint or petition. 
 
 "In asserting a lien on more than one lot or piece of land, it is proper to 
 show in the complaint some facts tending to connect them together as one 
 property." Idem, ?? 555, 557. 
 
 ' Richland's Flint Glass Co. Hiltebeital, 92 Va. 91, 22 S. E. Rep. 806. 
 
LIENS. 703 
 
 The bill must show by specific averment, or it must in some 
 way appear, that the account for the lien was properly filed 
 within sixty days after the claimant ceased to work or furnish 
 material;' and as to this feature of the bill it is not sufficient to 
 allege that plaintiff "filed a mechanic's lien," as this is a mere 
 conclusion of law, the truth of which is not admitted by a de- 
 murrer.' 
 
 The bill should show that there was a debt due to the plaintiff 
 at the time of suit brought. ' 'An averment that a lien claim for 
 a certain amount has been filed by the plaintiff is not equivalent 
 to an averment that that or any other amount was due. And a 
 lien claim attached to the petition, as an exhibit, alleging that 
 something was due when the claim was made, but which was made 
 some months before the beginning of the action, cannot supply 
 the place of an averment in the petition that something was due 
 when the action was begun." ' The bill need not be verified.* 
 
 § 521. Laborers' liens, origin of and how created — 
 
 Our statute provides that ' 'every workman, laborer or other 
 person who shall do or perform any work or labor, by virtue of 
 any contract for any incorporated company doing business in this 
 state, shall have a lien for the value of such work or labor upon 
 all the real estate and personal property of said company, and 
 such lien shall have priority over any lien created by deed or 
 otherwise upon such real estate or personal property, subsequent 
 to the time when said labor was performed, but there shall 
 be no priority of lien as between the parties claiming under the 
 provisions of this section. Provided, that no lien shall be created 
 under this section for labor performed more than nine months 
 before such lien was recorded."" This law was first enacted in 
 this state in 1879, and has been continued on our statute books 
 ever since.* 
 
 Our law further provides that "such lien shall be discharged 
 unless the person desiring to avail himself thereof, within sixty 
 days from the time he ceases to work or labor for such incor- 
 
 ' Lawton V. Case, 73 Ind. 60; Hamilton v. Naylor, 72 Ind. 171; Richland's 
 Flint Glass Co. v. Hiltebeital, supra; Beals v. Intrup, 40 111. 62; Wood v. 
 Ring Mfg. Co., 57 Ark. 000, 21 S. W. Rep. 471. 
 
 ' United States v. Ames, 9 Otto, 35. 
 
 3 Boisot on Mechanic's Wens, ? 547- * Idem, \ 535. 
 
 5 Code, chap. 75, sec. 7. ' Acts of 1879, chap. 84, sec. 6. 
 
704 BQUITY PRINCIPI,BS. 
 
 porated company, shall file witli the clerk of the county coiirt of 
 the county in which such work or labor was performed, or in 
 which the principal office, works, real estate or personal property 
 of such incorporated company is situate, a just and true account 
 of the amount due him after allowing all credits, which accounts 
 'shall be sworn to by the person claiming them, or by some one 
 in his behalf. ' " 
 
 § 522. The extent and character of laborers' liens — 
 
 Our statute ^ gives a hen on all the real estate and personal 
 property of any incorporated company doing business in this 
 state to every workman, laborer or other person who does any 
 work or performs any labor for such company by virtue of any 
 contract, written, verbal, express or implied, with such company 
 for the value of the work so done or labor so performed.'" The 
 meaning of section seven of chapter seventy-five of the Code, 
 whereby the laborers' lien is created, "cannot be extended to 
 embrace persons who have no privity of contract with the com- 
 pany, but must be confined to those who have such contract, 
 and who, by virtue thereof, do the work and perform the labor 
 for which the lien is claimed."* 
 
 In Richardson v. N. & W. R. Co., cited in the foot-notes. 
 Dent, J., in the course of his opinion, says: "By this section 
 every employe of an incorporated company, from the track hand 
 or coal heaver to the superintendent of the railroad or mines, is 
 secured a lien on all the company's property for the price of his 
 hire. The number secured by it is a multitude of vast propor- 
 tions. But no contractor or subcontractor, unless they actually 
 do work or perform labor, nor any of their employes, are entitled 
 to such lien, much less the right to a double lien, on the com- 
 pany's property without regard to any contract price. The legis- 
 lature has not yet seen fit to extend the provisions of this sec- 
 tion, as it has other sections, so as to include contractors fur- 
 ni-shing labor or material or the labor or material furnished by 
 them; and the right to so amend the law is not with the court." 
 
 The other features of the law as to laborers' liens are the same 
 as those governing mechanics' liens, and a repetition of the same 
 here is needless. 
 
 ' Code, chap. 75, sec. 8. » Code, chap. 75, sec. 7. 
 
 3 Richardson v. N. & W. R. Co., 37 W. Va. 641, 17 S. E. Rep. 195. 
 
 * Idem. 
 
LIBNS. 705 
 
 § 523. Vendor's lien on the sale of real estate — 
 
 Our law provides that "if any person convey any real estate, 
 and the purchase-money or any part thereof remain unpaid at the 
 time of the conveyance, he shall not thereby have a lien for such 
 tmpaid purchase-money, unless such lien is expressly reserved on 
 the face of the conveyance.' By this provision of the statute, 
 the vendor's equitable lien arising upon the sale of real estate 
 has been abolished;* and if the vendor does not expressly retain 
 a lien in his deed, he has no implied hen, even as against his im- 
 mediate vendee.' 
 
 Our courts hold that a deed for land, retaining a lien for pur- 
 chase-money, or mortgage, or deed of trust, must in some way 
 describe the debt, so as to identify it. I^iteral accuracy is not 
 required. Substantial accuracy is sufficient. The description of 
 the charge must be correct as far as it goes, so as to inform cred- 
 itors and subsequent purchasers what amount is charged on the 
 land, and must be fuU enough to direct attention to the sources 
 of correct information, and be such a description of the debt as 
 not to mislead or deceive as to its nature and amount.* The sound 
 wisdom of this principle is made apparent when we consider the 
 conclusion reached by the supreme court of appeals of Virginia 
 in National Valley Bank of Staunton v. Harman.' In that case 
 a vendor of real estate reserved in the deed of conveyance a lien 
 for purchase-money to be paid in five years, and a negotiable 
 note was made by the vendee for the amount, payable in five 
 years, but the note was not referred to in the deed. Shortly aft- 
 erward the vendor indorsed and transferred the note to a bank in 
 discharge of an antecedent debt. After the note had been so 
 transferred, the same vendor contracted to sell the same property 
 to a third person, who paid the purchase-money, and thereupon 
 took from the first vendee a conveyance of the property. The 
 second vendee was wholly ignorant of the existence of the out- 
 standing negotiable note and of any claim on the part of the 
 bank to the purchase-money. The court held that the second 
 vendee took the property unaffected by any lien in favor of the 
 holder of the note. 
 
 ' Code, chap. 75, sec. r. 
 
 ' Lough V. Michael, 37 W. Va. 679, 17 S. E. Rep. 181. 
 
 \n-aggs V. Hill, 43 W. Va. 162, 27 S. E. Rep. 310. 
 < C Jff V. Price, 42 W. Va. 384, 26 S. E. Rep. 287. s 75 Va. 604. 
 
7o6 EQUITY PRINCIPLES. 
 
 The vendor of personal property has no implied or equitable 
 lien on the property for the purchase-mo»ey/ unless they con- 
 tinue in his possession, when he has a lien thereon for their price, 
 if not otherwise stipulated." 
 
 And here it may be stated that an agent in possession of the 
 property, with unrestricted management of a mercantile, farming 
 and general trading business, carried on in his name, with the 
 right to buy, sell and exchange, has a lien on all the property 
 accumulated in such business, and in his possession, for all ad- 
 vancements made, expenses and liabilities incurred, proper, nec- 
 essary, or incident to such business, which is superior in right to 
 any lien which may be created on such property by the reputed 
 owner thereof; and while he may not, without the consent of 
 those interested, transfer or assign such lien to another, yet he 
 has a right to sell a suflScient amount of such property to satisfy 
 such liabilities, or may transfer the possession thereof to a trus- 
 tee, to be held by him until such liabilities are fully discharged, 
 and the lien thereby extinguished.' 
 
 Where there has been a sale of land by an executory contract, 
 and the title to the land still remains in the vendor, of course 
 the equitable vendor's lien exists, though the vendee has taken 
 possession of the land and made sale of it to another, and the 
 latter has paid all the purchase-money to his immediate vendor 
 which he agreed to pay.* 
 
 Upon a sale by executory contract which provides for the mak- 
 ing of a deed upon a certain 'event, but before all the purchase- 
 money is paid, and no mention is made in the contract as to the 
 reservation of a vendor's lien in the deed to be made, the vendor 
 has the right to reserve a lien for the unpaid purchase-money 
 when the deed is made.' 
 
 § 524. Vendor's equitable lien on the sale of real estate— 
 The law abolishes the lien only where the vendor has conveyed 
 
 the legal title, and has not reserved it on the face of the deed.' 
 It does not apply to the case where the title has been retained 
 
 ' Williams v. Gillespie, 30 W. Va. 586, 5 S. E. Rep. 210. 
 ' Gurtin v. Isaacsen, 36 W. Va. 391, 15 S. E. Rep. 171. 
 ' Dewing v. Hutton, 40 W. Va. 521, 21 S. E. Rep. 780. 
 '■"Ksher v. McNutty, 30 W. Va. 180, 3 S. E. Rep. 593. 
 5 Eindley v. Annstrong, 23 W. Va. 113. 
 * Yancey v. Mauck, 15 Gratt. 300. 
 
WENS. 707 
 
 by the vendor, for the obvious reason that in such case the prin- 
 ciples of our statutes requiring mortgages or deeds of trust to be 
 recorded, was not infringed upon, and because purchasers for 
 value of the legal title would not be endangered by parol proof 
 of notice. Holding back the deed, or what is the same thing, 
 depositing it as an escrow, until the payment of the purchase- 
 money was made, was from the first regarded as an intention to 
 resort to the land if necessary.* 
 
 § 525. Release or waiver of the vendor's lien, when prop- 
 erly created — 
 
 There is no substantial difEerence between the case of a vendor 
 who retains the title as security for the unpaid purchase-money, 
 and the case of a vendor, who, conveying the title, retains in his 
 deed an express lien for its payment.^ It is as valid as a deed 
 of trust or mortgage.' Therefore, the mere giving of a new 
 bond or note, in place of the original, does not release a vendor's 
 lien, but the lien is good for the new bond or note;* nor does the 
 taking of a judgment at law abrogate or defeat a vendor's hen 
 reserved, to secure the debt.* And in the sale of realty, the 
 vendor retaining title, the taking of a note of either vendee or a 
 third person will not discharge the lien by impUcation, in the ab- 
 sence of a plain intention that it so operate.^ But if it be shown 
 by direct evidence, or by the circumstances of the case, that the 
 vendor relied only on the bond and personal security, the ven- 
 dor's lien is waived, and he would be required to execute a 
 deed without reserving the vendor's lien. Before the passage of 
 our statute requiring an express reservation of this hen on the 
 face of the deed, the execution of a deed and the taking of per- 
 sonal security would amount to a waiver of the vendor's lien.' 
 But where there has been a sale of timber by executory contract 
 and the owner permits the vendee to sever it from the realty and 
 convert it into lumber, it becomes personal property, and the doc- 
 
 ' Yancey v. Mauck, 15 Gratt. 390. 
 " 2 Bart., Ch. Prac. 936. 
 
 3 Hull V. Hull, 35 W. Va. 155, 13 S. E. Rep. 52. 
 * Hull V. Hull, supra; Hopkins v. Detwiller, 25 W. Va. 749. 
 5 Kane v. Mann, 93 Va. 239, 24 S. E. Rep. 938. 
 
 « Mansfield v. Dameron, 42 W. Va. 794, 26 S. E. Rep. 527; Warren v. 
 Branch, 15 W. Va. 21. 
 J Warren v. Branch, supra. 
 
7o8 BQUITY PRINCIPIrES. 
 
 trine of vaidor's lien ceases to have any application to it.'* If 
 any lien does exist in such a case it is waived.' 
 
 A judicial sale of land in a sixit to specifically enforce a ven- 
 dor's lien duly reserved, releases the land from such lien.* 
 
 § 526. Lien of vendor upon sale of equitable title — 
 
 It is well settled that the vendor of an equitable right in a title 
 to land may enforce the vendor's lien for the purchase-money 
 whenever, under the same circumstances, the vendor of the legal 
 title could assert an equitable lien for such purchase-money.* 
 The same principle and reason apply to both cases, except that 
 our statute * qualifies the latter, while it has no effect upon the 
 former." 
 
 § 527. Time writhin which a vendor's lien may be en- 
 forced — 
 
 A lien for purchase-money reserved in a deed is placed on the 
 same footing as a mortgage or deed of trust, and the statute of 
 limitations does not apply to it.' 
 
 Though an action on the note or other instrument given to se- 
 cure such purchase-money may be barred, so as to defeat its col- 
 lection out of other property of the debtor, the lien against the 
 particular land is not barred.^ The mere presumption of the 
 payment of the lien arises after the lapse of twenty years.' But 
 this is a mere rebuttable legal presumption, and it may be over- 
 come by evidence and the lien enforced even after the lapse of 
 twenty years. ^'' 
 
 1 Williams v. Gillespie, 30 W. Va. 586, 5 S. E. Rep. 210. 
 
 ' Neff V. Baker, 82 Va. 401, 4 S. E. Rep. 620. 
 
 ' Wood V. Ellis, 85 Va. 471, 7 S. E. Rep. 852. 
 
 * Board v. Wilson, 34 W. Va. 609, 12 S. E. Rep. 778. 
 
 5 Code, chap. 75, sec. i. " Poe v. Paxton, 26 W. Va. 607 
 
 ^ Hull V. Hull, 35 W. Va. 155, 13 S. E. Rep. 49; Heiskell v. Powell, 23 W- 
 Va. 718; Wayt v. Carwithen, 21 W. Va. 516; Evans v. Johnson, 39 W. Va, 
 299, '19 S. E. Rep. 628. "The right to enforce the lien of an equitable mort- 
 gage is not lost by lapse of time, or barred by the statute of limitations, 
 until such time has elapsed as would bar relief upon the instrument creating 
 such lien— the dignity and character of the lien depending upon the nature 
 of the instrument creating it, and not upon the antecedent debt or lien in- 
 tended to be revived or preserved." Wayt v. Carwithen, supra. 
 
 ' Evans V. Johnson, supra; Paxton v. Rich, 85 Va. 378, 7 S. E. Rep. 531. 
 
 9 Tunstall v. Withers, 86 Va. 892, 11 S. E. Rep. 565. ■■> Ante, ? 487. 
 
WBNS. 709 
 
 The court may, however, refuse to enforce a vendor's lien, 
 on the ground of laches, before the expiration of twenty years. ^ 
 But mere delay, as we have already seen,' does not always con- 
 stitute laches. 
 
 To constitute inexcusable laches, the delay must have been 
 such as to afford a reasonable presumption of the satisfaction or 
 abandonment of the claim, or such as to present a proper defense 
 by reason of the death of parties, loss of evidence or otherwise; 
 so that whether the lapse of time is sufficient to bar a recovery 
 must, of course, depend upon the particular circumstances of 
 each case.' 
 
 § 528. The bill to enforce a vendor's lien — 
 
 If the suit is brought to enforce a lien for purchase-money re- 
 served on the face of the deed by the vendor, it is sufficient to 
 aver former ownership by the plaintiff of the land, describing it 
 so as to identify it, the sale to the defendant (the vendee), 
 with the averment of a reservation on the face of the deed to 
 secure unpaid purchase-money, stating the amount or balance 
 due and unpaid, the validity and subsistence of the lien, filing 
 the deed or a copy and the note or the evidence of debt as exhib- 
 its with the bill, accompanied with the defendant's refusal to pay 
 and his continued refusal to do so. This is a mere skeleton of 
 the complaint, with the commencement and prayer and conclusion 
 omitted, which are those usually employed in all bills seeking the 
 enforcement of liens against realty. 
 
 If the bond given for the unpaid purchase-money has been 
 lost, this should be averred, and in such case it is usual to swear 
 to the bill, though a failure to do so does not make the bill de- 
 murrable.* 
 
 If the suit is upon an executory contract for the sale of real 
 estate, to enforce specific performance by the payment of unpaid 
 purchase-money, under which no deed has passed from the vendor 
 to the vendee, but under which plaintiff is to furnish a deed of 
 conveyance by sufficient title, in addition to averring sale, de- 
 scription of the realty, existence of the equitable vendor's lien, 
 
 ' Duffield V. Butler, 34 W. Va. 624, 12 S. E. Rep. 776; Evans v. Johnson, 
 
 supra. 
 a jifite \ 299. ^ Tunstall v. Withers, supra. 
 
 * Robinson v. Dix, 18 W. Va. 528. 
 
7 TO EQUITY PRINCIPI<ES. 
 
 amount due of unpaid purchase-money, and defendant's refusal 
 to pay, the plaintifE must also aver his ability and willingness to 
 convey by a sufficient title the entire property which he has 
 agreed to convey and a tender of a sufficient deed therefor. The 
 deed must be brought into court and the tender of it kept good 
 until the suit has been determined.' 
 
 If there has been a settlement between the vendor and vendee 
 and a statement of account between them and the balance due 
 ascertained, this should be averred, as such balance is conclusive 
 as to the amount due, except on clear proof of mutual mistake 
 or of deception.* 
 
 § 529. As to the enforcement of the vendor's lien — 
 
 In a suit to enforce a vendor's lien the plaintiff is entitled to a 
 personal decree against the defendant' (the purchaser), and also 
 to enter a decree against the sale of. the land if the personal de- 
 cree be not satisfied.' And in a suit to enforce the judgment of 
 a lien which was obtained against the defendant by default, the 
 defendant will not be allowed in said chancery suit to make any 
 defense against said judgment which might have been successfully 
 made in a court of law, unless he shows some reason founded on 
 fraud, accident, surprise or some adventitious circumstance be- 
 yond his control, why the defense at law was not made.* 
 
 The lien may be enforced as to so much of the lien debt as may 
 be due though the residue may not yet be due.^ 
 
 There ought to be no decree to enforce a vendor's lien if the 
 title to the land is under a cloud or incumbrance, but if at the 
 date of a decree selling property for purchase-money, the tide, 
 though defective, because of prior lien or otherwise, has become 
 clear of lien and good to the purchaser, the court may go on to 
 
 ' Wood V. Walker, 92 Va. 24, 22 S. E. Rep. 523. 
 
 ' Neff V. Wooding, 83 Va. 432, 2 S. E. Rep. 731. 
 
 3 Fayette I^and Co. v. Louisville & N. R. Co., 93 Va. 274, 24 S. E. Rep. 
 1016. 
 
 "In a suit to enforce a vendor's lien, complainant is entitled to a personal 
 judgment for the full amount of the unpaid purchase price, and not merely 
 for the balance remaining due after crediting the proceeds from the sale of 
 the land." Idem. 
 
 « McNeel v. Auldridge, 34 W. Va. 748, 12 S. E. Rep. 851. 
 
 5 Moore v. Green, 90 Va. 181, 17 S. E. Rep. 872; Long v. Ferine, 41 W. 
 Va. 34, 23 S. E. Rep. 611. 
 
LIENS. 7 1 1 
 
 decree to enforce the contract.' And "where a vendee makes 
 separate contracts with two persons owning separate interests in 
 a tract of land, for the purchase of their respective portions, but 
 the land is subsequently conveyed to him by one deed, in which 
 the vendors warrant generally the whole title (a gross sum being 
 named as consideration), a recital in the instrument that the 
 vendor's lien is hereby expressly retained upon the land con- 
 veyed, to secure the payment of four bonds given for deferred 
 payments of purchase-money (two of the bonds being payable to 
 one vendor and two to the other), subjects to the payment of the 
 debt due each vendor the entire tract, and not merely his interest 
 therein."' 
 
 It is not necessary that the decree should provide for the sale 
 of the property on some court day.' 
 
 § 530. The statutory lien upon domestic steamers— 
 
 Our law provides that ' 'the citizens of this state shall have a 
 lien upon all domestic steamers, steamboats and vessels propelled 
 wholly or in part by steam, which ply upon the navigable waters 
 of this state, for all work or labor done upon said vessels, and for 
 all materials, goods, wares and merchandise furnished said ves- 
 sels; said hen to be enforced by appropriate remedy in courts 
 having jurisdiction of the subject-matter."* The lien here pro- 
 vided for cannot be enforced in a court of equity in a state court,* 
 but only in admiralty in the federal courts.' 
 
 1 McClangherty v. Croft, 43 W. Va. 270, 27 S. E. Rep. 246. 
 
 » Patterson v. Grottoes Co., 93 Va. 578, 25 S. E. Rep. 602. 
 
 3 Long V. Ferine, 41 W. Va. 314, 23 S. E. Rep. 611. 
 
 * Code, chap. 75, sec. 14. 
 
 5 State V. Cox Sons & Co. (N. J.), 44 Atl. Rep. 206. « Idem. 
 
712 EQUITY PRINCIPLES. 
 
 CHAPTER XLIX. 
 MORTGAGES. 
 
 J 531. Definition and kinds of mortgages. 
 
 532. When a writing is a mortgage, though in fonn a deed. 
 
 533. Distinction between a mortgage and a pledge. 
 
 534. Distinction between a mortgage and a conditional sale. 
 
 535. Mortgages for the support of the grantors and others. 
 
 536. Form and sufficiency of a mortgagfe. 
 
 537. Defeasance as a part of a mortgage. 
 
 538. The debt secured by the mortgage. 
 
 539. The doctrine of tacking as applied to mortgages. 
 
 540. As to the property upon which a mortgage may be taken and the 
 
 description thereof. 
 
 541. Mortgages upon railroad property. 
 
 542. The manner in which a railroad company may mortgage its prop- 
 
 erty and the extent thereof. 
 
 543. What person entitled to the rents after the execution of the mort- 
 
 gage. 
 
 544. Transfer of the dfebt secured by mortgage. 
 
 545. Waste committed by the mortgagor and the prevention thereof by 
 
 injunction. 
 
 546. The rights and duties of the mortgagee when in possession of the 
 
 mortgaged premises. 
 
 547. Equity of redemption as to mortgages. 
 
 548. Who may redeem property from the lien of a mortgage. 
 
 549. Statutes extending the time of redemption under mortgages. 
 
 550. Of the foreclosure of mortgages. 
 
 551. Defenses to foreclosure suits. 
 
 552. The extent of the lien of a mortgage. 
 
 § 531. Definition and kind of mortgages — 
 
 The speculations indulged by various law writers as to this 
 species of security does not really concern us, but the student 
 who is curious to know something of the rise and growth of 
 mortgages may consult with no little interest the reference found 
 in the foot notes.' 
 
 ' Martindale on Conveyancing (2d ed. ), §? 396-399; 4 Kent, Com. (12th 
 ed.), top pp. 135-138; 2 Washburn on Real Property (4th ed.), pp. 37, 38. 
 
 "Various attempts have been made to fix the origin of estates in mortgage 
 as known to the common law. It is said to be doubtful whether they were 
 
MORTGAGES. 713 
 
 The classification of mortgages is divided into legal and 
 equitable,' the former of which may be defined to be the con- 
 veyance of real estate or personal property by a debtor to a 
 creditor, as the security for the performance of a covenant, the 
 payment of a debt, or the repayment of a sum of money bor- 
 rowed, with a proviso that such conveyance shall be void on the 
 performance of the covenant, or the payment of the debt or 
 money borrowed, and interest, on a certain day." 
 
 The latter is a lien upon property of such a character that it 
 is recognized in equity as a security for the payment of money, 
 and is treated as a mortgage.' Owing to the diverse forms of 
 these liens, it is not possible to give a practical definition, so as 
 to cover all cases of equitable mortgages. Hence we can do 
 little, if anything, more than give illustrations of these liens 
 which the courts denominate equitable mortgages.* 
 
 Thus, a paper made for a deed of trust conveying land to se- 
 cure a debt signed by the grantor, but without a seal, though 
 not efEectual as a deed of trust at law, is an equitable mortgage, 
 enforceable in equity, and may be recorded under section four, chap- 
 ter seventy-four, Code, 1868, and when recorded is a lien valid 
 against subsequent purchasers and creditors.^ And where a lease 
 is sold with certain personal property thereon for a gross sum for 
 both, and in the writing, transferring the lease and personal 
 property, a lien is reserved for the payment of the purchase- 
 in use under the Saxons; it is quite certain they did not obtain for some 
 time after the Conquest, since they did not prevail under the feudal system. 
 But they had become common in the time of Henry VI and Edward IV. 
 Mr. Powell is inclined to ascribe their origin to the Jews, while Mr. Butler 
 derives them from estates upon condition at the common law. And at com- 
 mon law, if the pajonent was not made at the time fixed, the estate by 
 breach of the condition, became forfeited, and the mortgagee thereupon 
 held the same as absolute and irredeemable." 2 Washburn on Real Prop- 
 erty, pp. 37, 38. 
 
 ' Martindale on Conveyancing (2d ed.), 386. 
 
 ' Davis V. Demming, 12 W. Va. 246, 280. 
 
 3 Martindale on Conveyancing, ? 425. 
 
 * In the note to Atkinson v. Miller (.34 W. Va. 115), reported in 9 L. R. 
 A. 544-547, it is said that "an agreement in writing to give a mortgage, or a 
 mortgage defectively executed, or an imperfect attempt to create a mort- 
 gage, or to appropriate specific property to the discharge of a particular 
 debt will create a mortgage in equity or a specific lien on the property in- 
 tended to be mortgaged." 
 
 5 Atkinson v. Miller, 34 W. Va. 115, 11 S. E. Rep. 1007, 9 I,. R. A. 544. 
 
714 BQTJITY PRINCIPLBS. 
 
 money, as between the parties to the contract of sale and those 
 having actual notice of it, the lien will in a court of equity be 
 declared to be valid, and will be enforced by a sale of both real 
 and personal property for the purchase-money of both.' 
 
 So, too, a contract in writing, whereby the contractor agrees 
 to apply the proceeds of a particular tract of land or any portion 
 thereof to the payment of a debt, or whereby the contractor 
 agrees to apply the rents and profits of a particular tract of land 
 or any portion thereof to the payment of a debt, creates an 
 equitable lien on such land or such portion thereof which a court 
 of equity will enforce against volunteers and purchasers with 
 notice.' And an agreement, founded on a valuable consideration, 
 to give a mortgage on chattels, constitutes an equitable mort- 
 gage.' 
 
 Our supreme court of appeals approaches more nearly a prac- 
 tical definition of this plass of mortgages in Wayt v. Car- 
 withen * than any other that has come under our notice, wherein 
 it is declared that "any deed or written contract used by the 
 parties for the purpose of pledging real property, or some inter- 
 est therein, as security for a debt or obligation, which is informal 
 and insufficient as a common-law mortgage, but which by its 
 terms shows that the parties intended that it should operate as 
 a lien or charge upon specific property, will constitute an equita- 
 ble mortgage and may be enforced in a court of equity.'" 
 
 § 532. When a writing is a mortgage, though in form a 
 deed. 
 
 It not infrequently happens that a conveyance, though in fact 
 a mortgage, and was so intended by the parties at the time of its 
 execution, yet, on its face purports to be an absolute deed from 
 the grantor to the grantee for the property embraced therein. 
 In such a case, the real nature of the transaction may be shown 
 by parol evidence or the surrounding circumstances, and the 
 
 " Cole V. Smith, 24 W. Va. 287. 
 
 ' Smith V. Patton, 12 W. Va. 541. 
 
 3 Davis V. Childers, 45 S. C. 133, 22 S. E. Rep. 784; Brown v. Dail, 117 N. 
 C. 41, 23 S. E. Rep. 45. 
 
 * 21 W. Va. 516. 
 
 s See also Fidelity Ins. Trust & S. D. Co. v. Shenandoah Val. R. Co., 33 
 W. Va. 761, II S. E. Rep. 58, and especially at p. 6r. 
 
MORTGAGBS. 715 
 
 deed will be declared and held to be a mortgage by a court of 
 equity.' 
 
 In considering whether or not a deed absolute on its face is in 
 fact a mortgage, the court seeks to ascertain the original and 
 true intention of the parties to the instrument by means of some 
 well-recognized rules and principles applying in such cases; and 
 while these are not criteria determining the judgment of the 
 court in all cases, they are given great Vireight in concluding the 
 question to be decided. Among these principles invoked by the 
 courts are: First, the admission of the parties that the grantor 
 after the execution of the deed owes the consideration thereof to 
 the grantee as a debt.' Second, the gross inadequacy of the con- 
 sideration.' Third, the retention of the possession of the land 
 by the grantor for many years after the making of the deed with- 
 out the payment of any rent.* Fourth, that there had been nego- 
 tiations pending between the parties for a loan.* Fifth, that the 
 grantor was hard pressed for money, and that the grantee was a 
 known money-lender." Sixth, that the parties did not apparently 
 consider or contemplate the quantity or value of the land when the 
 deed was made.' 
 
 Of course, the declarations of the parties touching the trans- 
 action will be weighed and considered by the court in arriv- 
 ing at its judgment as to the character of the instrument be- 
 fore it,* and when on the parol evidence "it is doubtful, whether 
 the conveyance should be regarded by a court of equity as an 
 absolute deed or as a mortgage to secure a loan, the courts incline 
 to hold it to be a mortgage; but if, under the statute law in force, 
 when such transaction occurs, there is a forfeiture of principal 
 or interest, in cases of usury the court of equity, if a loan be 
 
 » Shank v. Groff, 43 W. Va. 337, 27 S. E. Rep. 340; Gilchrist v. Beswick, 
 33 W. Va. 168, 10 S. E. Rep. 371; McNeal v. Auldridge, 34 W. Va. 748, 12 
 S. E. Rep. 851; Ferguson v. Bond, 39 W. Va. 561, 20 S. E. Rep. 591; Law- 
 rence V. Du Bois, 16 W. Va. 443. 
 
 ' Lawrence v. Du Bois, supra; Hoffman, v. Ryan, 21 W. Va. 415. 
 
 3 Lawrence v. Du Bois, supra; Vangilder v. Hoffman, 22 W. Va. 2; Gil- 
 christ V. Beswick, 33 W. Va. 168, 10 S. E. Rep. 371. 
 
 * Lawrence v. Du Bois, supra; Vangilder v. Hoffman, supra; Hoffman v. 
 Ryan, supra; Gilchrist v. Beswick, supra. 
 
 5 Davis V. Deming, 12 W. Va. 246; Vangilder v. Hoffman, supra; Gilchri.st 
 V. Beswick, supra. 
 
 « Vangilder v. Hoffman, supra; Gilchrist v. Beswick, supra. i Idem. 
 
 « Vangilder v. Hoffman, supra. 
 
7l6 EQUITY PRINCIPI,ES. 
 
 shown, will presume that the legal rate of interest was to be paid 
 therefor, unless by clear and satisfactory evidence usury be es- 
 tablished, but the same degree of evidence will not be required, 
 as is required to convict in criminal prosecutions. ' ' ^ 
 
 An examination of the decisions will show that all these in- 
 dices need not necessarily combine in one transaction to establish 
 the existence of a mortgage in a deed absolute on its face." 
 
 Where a deed apparently absolute is shown by parol to have 
 been originally a mortgage, it may be declared a mortgage, 
 though the land has passed into the hands of a grantee who 
 paid no consideration for the land, or into the hands of a pur- 
 chaser for consideration, who had notice of the character of the 
 original transaction.'* 
 
 It must not be understood that these principles are unqualifiedly 
 followed by the courts in determining whether a deed absolute 
 in form is in fact a mortgage. They are mere rules made use of 
 by the courts to aid and guide them in reaching a just conclu- 
 sion, each case being determined by its own facts and circum- 
 stances.* 
 
 It may be well to state here that when it is shown that a deed, 
 absolute on its face, was, at the time it was executed, only in- 
 tended as a security for a debt, it will operate only as a mort- 
 gage; and it cannot be converted, by any subsequent ag^reement, 
 into an absolute conveyance, unless such subsequent agreement is 
 based upon a sufficient consideration, and is shown to have been 
 fairly made without undue influence by the creditor, and the 
 burden of showing this is upon the mortgagee. In other words, 
 it must amount to a sale of the equity of redemption, fairly 
 made. "Once a mortgage, always a mortgage." ^ 
 
 A suit by the grantor in a deed absolute on its face, to have it 
 declared and held to be a mortgage, may be brought in the 
 county where the grantee resides, though the land lie in anothei 
 county." 
 
 ' Vangilder v. Hoffman, supra; McNeel v. Auldridge, 34 W. Va. 748, la 
 S. E. Rep. 851, 855; Gilchrist v. Beswick, supra. 
 
 = Hoffman v. Ryan, 21 W. Va. 415; Ferguson v. Bond, supra. 
 
 3 Zane v. Fink, 18 W. Va. 693; Lawrence v. Du Bois, supra. 
 
 * Matheny v. Sanford, 26 W. Va. 386; Hodge v. Weeks, 31 S. C. 276, 9 S. 
 E. Rep. 953, 954. 
 
 5 Brownlee v. Martin, 28 S. C. 364, 6 S. E. Rep. 148, 149. 
 
 ' Lawrence v. Du Bois, supra. 
 
MORTGAGES. 7^7 
 
 § 533. Distinction betAveen a mortgage and a pledge — 
 
 A mortgage conveys the legal title to tlie mortgagee, to be 
 avoided upon the performance of a certain condition — usually 
 the payment of a debt within a specified time; while a pledge 
 or a pawn is a security created by the actual or constructive de- 
 livery of a personal chattel to a bailee or pledgee; the general 
 property remaining in the pledgor, the pledgee having only a 
 special property or right of retainer until the debt is paid.' 
 
 To create a pledge, no transfer of the legal title is necessary, 
 but there must be a transfer of the possession.* The general 
 title to the property remains in the pledgor, and the pledgee has 
 only a special property or right of retainer until the debt is paid.^ 
 The pledgor has a right to redeem even at law at any time after 
 default, and before a pubhc sale of the pledged property by the 
 pledgee.* 
 
 § 534. Distinction bet^veen a mortgage and a conditional 
 sale — 
 
 A conditional sale with a right to repurchase very closely re- 
 sembles a mortgage.' 
 
 Our court in Davis v. Demming, cited in the foot-notes, draws 
 the distinction between these two matters in the following lan- 
 guage : ' 'The distinction between a mortgage and a conditional sale 
 is, that where money is not loaned, but is advanced with an agree- 
 ment that if it be repaid at a given time, the vendee will reconvey 
 the land, and the whole transaction shows clearly that no debt 
 really remained after the execution of the deed, such transac- 
 tion is a conditional sale; but if, no matter in what form the 
 papers be drawn, the whole transaction shows that after the ex- 
 ecution of the deed a debt still remained, such transaction will be 
 held to be a mortgage." ' 
 
 There is a wide difference in the legal efEect of a mortgage and 
 a conditional sale, and the rights of the respective parties under 
 them. Under the former equity permits a redemption, though 
 the debt has not been paid or the covenant performed at the time 
 stipulated, while under the latter the time fixed or hmited for 
 the re-purchase must be precisely observed, or the grantor's 
 
 • Fetter on Equity, 226. " Idem, 227. 3 Mem. 
 < Idem. See Surber v. McClintic, 10 W. Va. 236. 
 
 5 Davis V. Demming, 12 W. Va. 246, 281. 
 
 * See Snavely v. Pickle, 24 Gratt. 368; Hoffman v. Ryan, 21 W. Va. 415. 
 
7l8 BQUITY PRINCIPLES. 
 
 right to reclaim the property is irretrievably lost.' If a deed 
 dearly appears upon its face to be a mortgage, parol evidence is 
 not admissible to show that it was a conditional sale only, and 
 not a mortgage." But a conditional sale is not opposed to public 
 policy, nor is it in any sense illegal; and the courts of equity will 
 give it effect as such when that is the real intention of the 
 parties.' And to convert an instrument, on its face a conditional 
 sale, into a mortgage, the intention and understanding of both 
 parties to such instrument must be shown to have concurred that 
 it should so operate. The fact, however, clearly proved, that 
 the gfrantor alone intended and considered the transaction a mort- 
 gage, is not sufficient to make it such.* 
 
 § 535' Mortgages for the support of the grantor and 
 others — 
 
 Instruments assuming the form or effect of a mortgage, or 
 trust given for the support and maintenance of the grantor or 
 some third person therein designated, are of frequent occurrence, 
 and the courts do not hesitate to enforce their provisions. 
 
 It not infrequently happens that these instruments are silent as 
 to where the party provided for may demand his support or 
 the amount or extent thereof." It is settled that in the former 
 case the beneficiary or obligee may designate a reasonable place 
 for the performance of the covenant, and under such an instru- 
 ment as the kind here mentioned, the rooms, food, raiment, etc. , 
 need not be supplied at the house of the mortgagee, unless the 
 beneficiaries so elect.* But where the instrument designates the 
 place and manner of support, the party upon whom the obliga- 
 tion to make support rests, is not bound to provide any support 
 other than that provided for in the instrument.' 
 
 Where the amount of the support is not agreed, the practice in 
 suits brought to enforce the duty is to aggregate the same in one 
 
 ■ 1 Beach, Mod. Eq. Jur, 2 413; 2 Bart., Ch. Pr. 941. 
 
 ' 2 Wash., Real. Prop. (4th ed.), 61, 62. 3 i Beach, Mod. Eq. Jur., § 414. 
 
 * Idem. 
 
 5 See Coleman v. Whitney, 62 Vt. 123, 9 I,. R. A. 517; Cook v. Bartholo- 
 mew, 60 Conn. 24, 13 I/, R. A. 452; Tuttle v. Burgett, 53 Ohio St. 68, 30 L. 
 R. A. 214; Dreisbach v. Serfass, 126 Pa. St. 32, 3 X,. R. A. 836. 
 
 "■ Tuttle V. Burgett, supra, and the numerous cases cited in the opinion, 
 McArthur v. Gordon (N. Y.), 32 L. R. A., at p. 671. 
 
 ' Kome V. Kome, 30 W. Va. i, 3 S. B. Rep. 17. 
 
MORTGAGES. 7 19 
 
 entire sum upon the basis of the age, health, general condition 
 and expectation of life of the beneficiary determined from the 
 probable cost of his or her support for one year.' 
 
 When the consideration of the conveyance is the support of 
 the grantors or one of them for a designated time or period, as 
 during the lives of the grantors or the life of one of them, and 
 it appears from the circumstances and intention of the parties 
 that the duty of support is made a charge upon the real estate 
 conveyed, a lien as a security for the discharge of this obligation 
 will be implied, though not expressly reserved upon the face of 
 the deed, and such implied lien will attach to the land as against 
 subsequent purchasers and creditors of the vendee.' 
 
 § 536. Form and sufficiency of a mortgage — 
 
 In Davis v. Deming," the court, in speaking of the character- 
 istics of a mortgage, in the course of its opinion, says: "The 
 usual form of a mortgage is by a single deed, which contains the 
 whole contract, but it frequently is put in the form of two deeds, 
 one an absolute conveyance executed by the mortgagor, the 
 other a defeasance executed at the same time by the mortgagee. 
 The last mode is as effectual to create a mortgage as the former. 
 The usual mode of drawing a mortgage, whether it be in one 
 deed or in a deed and defeasance separately, is to insert a clause, 
 that if the debt is paid or covenants performed by a certain day, 
 the deed shall be void, but the deed or deed and defeasance is 
 just as effectual as a mortgage, though instead of such a proviso 
 there is a covenant by the mortgagee in the deed or defeasance 
 that he will reconvey the land to the grantor in the deed if the 
 debt is paid or the covenant performed by a given time. Such a 
 form of mortgage is given in the form books. It is usual for 
 the mortgagor to oblige himself by the deed to pay the debt or 
 repay the money borrowed; but the omission to insert such an 
 obligation in the deed, or to execute any collateral personal obli- 
 gation to pay the debt, will not in any way vitiate the deed or 
 deed and defeasance as a mortgage or convert the defeasance 
 into a conditional sale, because there was no such personal obli- 
 
 ' Cook V. Bartholomew, supra. 
 
 ' McClure v. Cook, 39 W. Va. 579, 20 S. E. Rep. 612. 
 
 ' 12 W. Va. 246, 280. 
 
720 EQUITY PRINCIPLES. 
 
 gation, but only a covenant by the grantor to recQnvey on tlie 
 payment of tlie debt at a g^ven time." ^ 
 
 Inasmuch, as equity looks at substances rather than form, no 
 particular form of instrument or formal words of transfer are re- 
 quired to make an instrument operate as a mortgage.' 
 
 § 537- Defeasance as a part of the mortgage — 
 
 In the draft of a mortgage it is usual, as we have already 
 
 stated,' to insert the terms upon which the conveyauce may be 
 
 defeated in the deed by which it is made.* But this is not really 
 
 necessary. It may be contained in a separate writing made as a 
 
 part of the original deed.^ 
 
 And it is not necessary that it should bear the same date as the 
 
 original deed, provided it be deUvered at the same time," and the 
 
 defeasance may be either written or oral.' 
 
 But if the instrument itself discloses that it is intended as a 
 
 security, no defeasance is necessary.* 
 
 § 538. The debt secured by the mortgage — 
 
 Inasmuch as a deed of trust is treated as one form of mort- 
 gage, and we have already considered the subject of the descrip- 
 tion of the debt secured by that form of an instrument,' we need 
 add but very little to the consideration of that feature of a 
 mortgage. But, like all other contracts, a mortgage must be 
 supported by a consideration.^" The consideration need not be a 
 valuable one; a good one is sufi&cient, as, for example: the rela- 
 tionship of parent and child;" and the consideration need not pass 
 at the time of the execution of the mortgage," as a precedent 
 debt is sufficient. '^ Nor is it necessary that the debt or duty 
 should be evidenced by any separate written instrument.^* It can 
 be laid down as elementary law that any benefit to the mortgagor 
 or to a stranger, or damage or loss to the mortgagee, rendered or 
 
 ' We have omitted the authorities referred to in the opinion in order to 
 save the space required for their insertion. 
 
 ' I Beach, Mod. Eq. Jur., ? 400. 
 
 ^ Anie, i 5^6. * 2 Wash., Real Prop. 44. ^ Idem. ^ Idem. 
 
 1 I Beach, Mod. Eq. Jur., \ 401. 
 
 ' Idem. , 9 Ante, § 473. '° i Beach, Mod. Eq. Jur., § 403. 
 
 " Idem. '= Idem,. '' Idem. 
 
 '* Martindale on Conveyancing, \ 443, citing among other cases, Eacho v. 
 Cosby, 26 Gratt. 112. 
 
MORTGAGES. 721 
 
 sustained at the request of the mortgagor, or a liability to loss 
 or damage on the part of the mortgagee, is a sufficient consid- 
 eration to sustain a mortgage.^ The parties to a mortgage, given 
 to secure a specific sum, cannot, as against the intervening rights 
 of others, extend the mortgage to cover other debts, nor a higher 
 rate of interest.* Neither can a mortgage be extended by im- 
 plication to secure any other obligation than that expressly men- 
 tioned.' Though a party, dealing with the equity of redemp- 
 tion, takes it subject to a reasonable construction being placed 
 upon the mortgage.* A change in the form of the indebtedness, 
 as by the renewal of the original note of the mortgagor, does 
 not affect the security. A mortgage intended to secure a certain 
 debt is valid in eqmty for that purpose, whatever form the debt 
 may assume, if it can be traced.* 
 
 Interest, both before and after maturity, is recoverable by vir- 
 tue of the contract as an incident or part of the debt.' A mort- 
 gage may also be made to secure the payment of a reasonable 
 attorney's fee, in case of a foreclosure, and such a provision is 
 included in the hen of the mortgage as much as the debt itself.' 
 
 § 539- The doctrine of tacking as applied to mortgages — 
 The English doctrine of tacking has been universally rejected 
 
 in the United States, as being impossible under our system of 
 
 recording and registering mortgages.* 
 
 This is where a third mortgagee, who advances his money 
 
 without notice of the second mortgage, has an equal equity 
 
 with the second mortgagee, and, by afterwards purchasing the 
 
 first mortgage, the third mortgagee obtains the legal title, and 
 
 is thus entitled to priority over the second.' 
 
 This doctrine is also thus stated by Mr. Snell: "That if a 
 
 third mortgagee buys in the first mortgage, being a legal mort- 
 
 ' Martindale on Conveyancing, p. 403. 
 
 ''Idem, 4C4, 405; Astrip v. Rasnake, 96 Va. 277, 31 S. E. Rep. 4. 
 
 9 Idem. * Idem. s Mem, citing numerous authorities. *Idem. 
 
 7 Idem. See also Piasa Bluffs Imp. Co. v. Evers, 65 111. App. 205; South- 
 ern Cal. Motor Road v. Union Loan & Trust Co., 12 C. C. A. (U. S.) 215; 
 Hamlin v. Royes, 79 Ga. 581, 5 S. E. Rep. 125; Branyan v. Kay, 33 S. C. 283; 
 II S. E. Rep. 970. 
 
 « Snell 's Principles of Equity (ist Am. ed. from 6th Eng. ed.), 291; Mar- 
 tindale on Conveyancing, 405; Colquham v. Atkinson, 6 Munf. 550. 
 
 ' Idem, 227. See Surber v. McClintic, 10 W. Va. 236, 242-245. 
 
722 EQUITY PRINCIPLES. 
 
 gage, though it be pendente lite, pending a bill brought by the 
 second mortgagee to redeem the first, yet the third mortgagee 
 having obtained the first mortgage, and got the law on his side 
 and equal equity, he shall squeeze out the second mortgagee, 
 and this the I^ord Chief Justice Hale called a 'plank' gained by 
 the third mortgagee or tabula in naufragio, which construction is 
 in favor of a purchaser, every mortgage being such^w tanto."^ 
 
 § 540. As to the property upon wrhich a mortgage may be 
 taken and the description thereof — 
 
 What has been said as to deeds of trust as to the property 
 that may be embraced therein, as well as the description there- 
 of,^ applies hkewise to mortgages. 
 
 In addition to the authorities heretofore cited ' to the effect 
 that a mortgage of after-acquired property is good and valid, and 
 that the lien thereof attaches to it as soon as the property is 
 acquired by the grantor, we cite those found in the foot- 
 notes.* But the courts seem to all agree that a mortgage can- 
 not be made to embrace after-acquired property except as between 
 the parties thereto.* The legal title to after-acquired property 
 does not pass to the mortgagee, so that at law a mortgage does 
 not cover such property. But as the court of appeals of New 
 York, in Kribbs v. Aford,* says: "Invalidity at law imports 
 nothiiig more than that a mortgage of property thereafter to be 
 acquired is inefEectual as a grant to pass the legal title. A court 
 
 ' Idem, 227. = Ante, 5§ 471, 472. 3 Ante, I 471. 
 
 ♦Ackers V. Rowan, 33 S. C. 451, lo L. R. A. 705; Parker v. Jacobs, 14 S. 
 C. 112. 
 
 sLudwig V. Kipp, 20 Hun. 265; Loth v. Carty, 85 Ky. 591; Leland v. 
 CoUver, 34 Mich. 418; Allen v. Goodnow, 71 Me. 420; Deeley v. Dwight, 
 132 N. Y. 59, 18 L. R. A. 298, note to Deeley v. Dwight, supra, pp. 298-303; 
 Sandwich Mf'g Co. v. Robinson, 83 Iowa, 567, 14 L. R. A. 126, and note 
 thereto, pp. 126, 127. "At common law, a man cannot give a mortgage of 
 property which has not either an actual or potential existence at the time the 
 mortgage is made, or of which he is not at such time the owner; but such 
 a mortgage is now held valid and enforceable in equity. It becomes a valid 
 lien upon the acquisition of the property, and as between successive mort- 
 gages of after-acquired property, priority of lien is determined by prioritj 
 of time. But such a mortgage attaches to the property subject to existing ' 
 liens thereon, altihongh it is prior in point of time to them." i Beach, Mod. 
 Eq. Jur., g 417. 
 
 » 120 N. Y. 519, 18 L. R. A. 304. 
 
MORTGAGES. 723 
 
 of equity, in giving effect to such a provision, does not put itself 
 in conflict with that principle. It does not hold that a convey- 
 ance of that which does not exist operates as a present transfer 
 in equity any more than it does in law. But it construes the in- 
 strument as operating, by way of present contract, to give a lien 
 which, as between the parties, takes effect and attaches to the 
 subject of it as soon as it comes into the ownership of the party. 
 Such we deem the rule to be in equity in this state." 
 
 § 541. Mortgages upon railroad property — 
 
 As to the power of a railroad company to borrow money and 
 to mortgage its property and franchise to secure its payment, in 
 the absence of legislative authority, the decisions of the courts 
 are not altogether in harmony. Some of the courts hold that 
 such power on the part of a railroad corporation is implied,^ 
 while others hold that no such power exists, in the absence of 
 a statute conferring it.' 
 
 If there is any question of the power of a railroad company to 
 mortgage its property to secure a loan in the absence of statutory 
 enactment, it does not arise with us, because our law provides 
 that such a corporation shall have power "from time to time to 
 borrow such sums of money as may be necessary for completing, 
 finishing, improving or operating any such railroad; and to issue 
 bonds, bills of credit for indebtedness and preferred stock, and 
 dispose of the same for any amount so borrowed; and to mort- 
 gage its corporate property and franchises to secure the payment 
 of any debt contracted by such corporation for the purpose 
 aforesaid; but the concurrence of the holders of two-thirds in 
 amount of the stock of such corporation, to be expressed in the 
 manner and under all conditions provided in section forty-five of 
 this chapter, shall be necessary to the validity of any such 
 mortgage; and the order or resolution for such mortgage shall 
 be recorded as provided in section thirty-five of this chapter; and 
 the directors of such corporation shall be empowered, in pursuance 
 
 ' Savannah & M. R. Co. v. Lancaster, 62 Ala. 555; Kelly v. Ala. & C, R. 
 Co., 58 Ala. 489, 21 Am. Ry. Rep. 138; Bardstown & L. R. Co. v. Metcalfe, 4 
 Mete. (Ky.) 199; Richards v. Merrimack & C. R. R. Co., 44 N. H. 127. 
 
 " Com. V. Smith (Mass.) 448; Atkinson v. Marietta & C. R. Co., 15 Ohio 
 St. 21; Frazer v. East Tenn. V. & G. R. Co., 40 Am. & EJng. R. Cas. 358, 
 88 Tenn. 138, 12 S. W. Rep. 537; Pitts. & C. R. Co. v. Allegheny County, 
 63 Pa. St. 126. 
 
724 EQUITY PRINCIPLES. 
 
 of any such order or resolution, to confer on any holder of such 
 bond for money, so borrowed aforesaid, the right to convert the 
 capital due or owing thereon into stock of such corporation at 
 any time, not exceeding ten years after the date of such bond, 
 under such regulations as may be provided in the by-laws of 
 such corporation."^ 
 
 And our law further provides that such corporation shall have 
 power "to mortgage its property, real and personal, and its 
 franchises, to secure any bonds or stock issued by such corpora- 
 tion for any of the purposes designated in the fifty-second section 
 of this chapter." ^ 
 
 § 542. The manner in vrhich a railroad company may 
 mortgage its property and the extent thereof — 
 
 As we have just seen, from the next preceding section, that the 
 mortgage of a railroad company may be valid, there must be a 
 concurrence of the two-thirds in amount of the stock of such 
 company expressed in the manner provided by law,' and the 
 order or resolution for such mortgage must be recorded by our 
 statute.* 
 
 The expression of the holders of two-thirds of the stock of 
 such company must be made at a meeting of the stockholders, 
 either in person or by proxy, after the publication of the time, 
 place and purpose of such meeting, as provided in section forty- 
 five of our Code, chapter fifty-four, or at such a meeting called 
 or assented to in writing by all the stockholders.* The order or 
 resolution authorizing the mortgage must be recorded in the 
 office of the secretary of state.* 
 
 The law restricts the purposes for which money may be bor- 
 rowed and the mortgage given to secure it by a railroad company 
 to such sums as may be necessary "for completing, furnishing, 
 improving or operating" the railroad.' 
 
 § 543- What person entitled to the rents after the execu- 
 tion of the mortgage — 
 
 Although in practice the mortgagor usually remains in posses- 
 sion, yet in the absence of any stipulation to that effect con- 
 
 ■ Code, chap. 54, sec. 50, clause 11, pp. 531, 532. 
 i " Idem, clause 12, p. 532. 3 See Code, chap. 54, sec. 45. 
 
 < Idem, sea 35. s Idem, sec. 45, p. 528. « Idem, sees. 33 and 35. 
 
 , ' Idem., sec. 50, cl. 11. 
 
MORTGAGES. 725 
 
 tained in the mortgage deed, it is only as tenant at will, or, 
 rather, by suff ranee to the mortgagee.^ 
 
 But as long as the mortgagor remains in possession of the 
 premises he is entitled to the rents, issues and profits thereof, 
 without rendering an account of them to the mortgagee, who 
 never can recover them from him.' The mortgagor is regarded 
 by a court of equity as the real owner of the property, the mort- 
 gage being treated as a mere security; and although the mort- 
 gagee holds the legal title to the property, he is considered as 
 holding a mere chattel interest therein.^ 
 
 If, therefore, a suit to foreclose a mortgage, whether of real or 
 personal property, be brought by the mortgagee, the mortgagor 
 will continue, pending the suit, to take the rents and profits or 
 use of the mortgaged property, unless the court by its order ap- 
 point a receiver, and he takes possession of it.* Till the receiver 
 takes actual possession of the mortgaged property, the mort- 
 gagor in possession takes the rents, issues and profits, or has 
 the use of the property as owner, without rendering an account 
 thereof.' 
 
 But after forfeiture, the mortgagee has a right to take posses- 
 sion of the mortgaged property, and hold the same, without ren- 
 dering an account of the rents, issues and profits, other than 
 applying them to the payment of the debt secured by the mort- 
 gage. ° And an alienee of the mortgagor may also have the 
 rents of the property in like manner as such mortgagor, if he 
 has taken the property in good faith, innocent of any fraud;' but 
 if such alienee is charged with fraud, he must account for the 
 rents.* 
 
 § 544. Transfer of the debt secured by mortgage — 
 
 The transfer of a note secured by a mortgage carries with it 
 the mortgage also without any formal assignment or delivery or 
 even mention of the mortgage.' 
 
 ' 2 Bart., Ch. Pr. 940. 
 
 =■ Childs V. Hurd, 32 W. Va. 68, 9 S. E. Rep. 362; Cox v. Horner. 43 W. 
 Va. 786, 28 S. E. Rep. 780. 
 
 3 Chads V. Hurd, supra. * Idem. s Idem. « Idem. 
 
 ' Stoat V. PhUippi M. & M. Co., 41 W. Va. 339, 23 S. E. Rep. 571. 
 
 ' Idem.. 
 
 9 Parker v. Randolph, 5 S. D. 549, 29 L. R. A. 33; Tingle v. Fisher, 20 W. 
 Va. 498, syl. 2; Jenkins v. Hawkins, 34 W. Va. 799, 12 S. E. Rep. 1090; 
 
■■n 
 
 726 EQUITY PRINCIPI.es. 
 
 When a note secured by mortgage is negotiable, and it is 
 transferred or assigned before maturity to an 'innocent third 
 party for value, the assignee may enforce payment thereof 
 against the mortgaged property by virtue of his mortgage lien 
 thereon, free from all equities of defense, if any existing, in favor 
 of any one, except the mortgagor himself.^ 
 
 The assignee of a mortgage takes it subject only to the equities 
 existing in favor of the mortgagor against the assignor, and not 
 subject to the latent equities in favor of third persons in the sub- 
 ject involved in the assignment, of which hei>had no notice. 
 While it is the duty of the purchaser to inquire of the mort- 
 gagor, he is not required to inquire of the whole world as to 
 latent equities.'' 
 
 This rule does not embrace equities or defenses springing from 
 default, or even fraud, of the assignor, committed subsequent to 
 the assignment, and which had no existence and were simply 
 possibilities at the time of the assignment. The rule excludes 
 defenses and rights after the assignment.' 
 
 It is scarcely necessary to state here that a mortgage creditor 
 cannot be compelled to assign the debt and mortgage upon re- 
 ceiving payment; all that can be required of him is an acquit- 
 tance and a release.* 
 
 Jenkins v. Wilbinson, 113 N. C. 532, 18 S. E. Rep. 696; Thomas v. Ivinn, 40 
 W. Va. 122, 20 S. E. Rep. 878. 
 
 ' Humble v. Curtis, 160 111. 193, 43 N. E. Rep. 749; Himrod v. Oilman, 
 147 m. 293, 35 N. E. Rep. 373; Silverman v. Bullock, 98 El. 11; Murray v. 
 Lylbum, 2 John. Ch. 441, I,, ed. (Ch.) Book i, 440; Moot v. Clark, 9 Pa. 
 St. 399; Pryor v. Wood, 31 Pa. St. 142; Van Buckleo v. Southwestern Mfg. 
 Co. (Tex.), 39 S. W. Rep. 1082; Concise v. Bartels (Kan. Sup.), 46 Pac. 
 Rep. 940; First Nat. Bank v. Roher (Mo. Sup.), 39 S. W. Rep. 1047; Craw- 
 ford V. C. Aultman & Co. (Mo. Sup.), 40 S. W. Rep. 952. 
 
 ' Silverman v. Bullock, 98 111. 19; Moore v. Holcombe, 3 Leigh, 597; s. c. 
 24 Am. Dec. 687; James v. Morey, 2 Cow. 298; Hovey v. Hill, 3 Lans. 172; 
 Tison V. Peoples Sav. & Loan. Asso. 57 Ala. 331; Livingston v. Dean, 2 
 Johns. Ch. 480; Livingston v. Hubbs, Id. 513; Mott v. Clark, 9 Pa. 399; Red- 
 fearn v. Ferrier, i Dow. Pari. Cas. 50; Clute v. Robinson, 2 Johns. Ch. 595; 
 Olds V. Cummings, 31 HI. 188; Pryor v. Wood, 31 Pa. 142; Westfall v. Jones, 
 23 Barb. 10. 
 
 3 Bush v.. Cushman, 27 N. J. Eq. 134; Cornish v. Bryan, 10 N. J. Eq. 146; 
 Losey V. Simpson, 11 N. J. Eq. 253; Coster v. Griswold, 4 Edw. Ch. 374, 
 marg. ; 2 Lead. Cas. Eq. Pt. 2, 238. 
 
 * Gatewood v. Gatewood, 75 Va. 407. 
 
MORTGAGES. 727 
 
 § 545- "Waste committed by the mortgagor and the pre- 
 vention thereof by injunction — 
 
 Though the mortgagor do retain possession of the premises 
 after the execution of the mortgage, he must so use them as not 
 to seriously injure them and thus impair the mortgagee's sc 
 curity.^ 
 
 Whether the cutting of timber on mortgaged land is wrongful 
 or not depends upon the nature of the land and the circumstances 
 of the case.' The general rule is that the mortgagor may cut tim- 
 ber if the security of the estate is sufficient without it, but not 
 otherwise.' A mortgagor of a farm who cuts a reasonable quan- 
 tity of wood for his own use as fuel can, on leaving the farm, 
 remove the wood for use elsewhere.* As between the mortgagor 
 and mortgagee, the property in timber cut on the mortgaged 
 premises is in the latter, and a purchaser from the mortgagot 
 takes it subject to the paramount rights of the mortgagee.* 
 
 It is laid down by Mr. Beach in his work on equity, that 
 "where the threatened continuance of the waste would involve 
 an injtuy to the property which would render the security inade- 
 quate, the mortgagee is entitled to an injunction, and it is not 
 necessary to aver or prove the mortgagor's insolvency. But the 
 acts complained of must be such as may render the security in- 
 sufficient for the satisfaction of the debt, or of doubtful suffi- 
 ciency. Where a mortgage is regarded as a conveyance of the 
 legal title to the property, giving the mortgagee a right of pos- 
 session, his legal ownership and actual or constructive possession 
 give him the right to follow and recover personal property sev- 
 ered from the mortgaged premises; but where the mortgage is 
 regarded merely as security, and the mortgagor has the right of 
 possession until ejectment or foreclosure, the mortgagee has 
 merely the right to restrain the removal of such property by in- 
 junction to protect his lien, or, after removal, to recover damages 
 of the mortgagor for the wrongful diminution of his security. 
 To justify the appointment of a receiver for the property, the 
 waste must be serious and the danger of destruction or impair- 
 ment of the security must be imminent. In a late case, it was 
 held that the mere disuse of a manufacturing plant, under an 
 
 ' I Beach., Mod. Eq. Jur., § 426. ''Idem. ^ Idem. '■Idem. 
 
 5 Gore V. Jeness, 19 Me. 53; Stowell v. Pike, 2 Me. (2 Greenl.) 387; Fro- 
 tingham v. McKusick, 24 Me. 403; Waterman v. Matteson, 4 R. I. 539. 
 
728 EQUITY PRINCIPLES. 
 
 agreement with other manufacturers to restrict production, 
 though attended with decay and dilapidation inseparable from 
 disuse, is not such destruction or waste as to entitle the mort- 
 gagee to ask for a receiver." ^ 
 
 § 546. The rights and duties of the mortgagee when in 
 possession of the mortgaged premises — 
 
 As we have seen,' it is usual for the grantor in a mortgage to 
 retain possession until its forfeiture, but after such forfeiture the 
 grantee often takes possession of the premises, and when in pos- 
 session thereof, he is required to exercise that care and diligence 
 which a prudent man would exercise in respect to his own prop- 
 erty;' and must account for the rents, issues and profits of the 
 mortgaged premises while he retains the possession thereof.* 
 
 After the mortgagee takes possession of the premises, he can- 
 not surrender them at his own option, but must hold them under 
 the terms and upon the conditions the law imposes upon him.* 
 Neither can he be required to give them up so long as his debt 
 remains unpaid,* even though his debt may be barred by the 
 statute of limitations.' 
 
 Ordinarily, a mortgagee in possession will not be held account- 
 able for more than the rents and profits actually received, unless 
 he has been guilty of fraud or negligence, but where he has not 
 exercised proper diligence and care, he must account for such 
 profits as he would have got.' 
 
 A mortgagee is not allowed compensation for his own care and 
 labor in taking care of the mortgaged premises, except that he 
 may be reimbursed a reasonable sum paid an agent for collect- 
 ing rents and looking after the property, in those cases wherein 
 a prudent man would have done likewise in the care and manage- 
 inent of his own property.' 
 
 The mortgagee, after forfeiture, may obtain possession of the 
 premises either by an action of unlawful entry and detainer '" or 
 
 » I Beach, Mod. Eq. Jur., g 427. See ante, \ 237. = Ante, ? 543. 
 
 3 I Beach, Mod. Eq. Jur., \ 429. < Idem. 5 Idem. 
 
 « Spect V. Spect, 88 Cal. 437, 13 L. R. A. 137; Root and McBride Bros. v. 
 Davis, 51 Ohio St. 000, 23 L. R. A. 445; Cook v. Cooper, 7 L. R. A. 272, note 
 at pp. 276, 277. 
 
 ' Spect V. Spect, supra. 
 
 ' I Beach, Mod. Eq. Jur., § 432. » Idem, \ 435. 
 
 " Allen V. Gibson, 4 Rand. 468. 
 
MORTGAGBS. 729 
 
 by an action of ejectment,' if the property is real estate, but if 
 personalty, then by an action of detinue. 
 
 § 547. Equity of redemption as to mortgages — 
 
 At common law, after breach of condition, the estate of the 
 mortgagor was absolutely determined.^ But courts of equity 
 subsequently granted relief from the harshness of this rule by 
 giving the mortgagor, or those succeeding to his interests, a right 
 of redemption.' This constitutes the chief difference between 
 mortgages at common law and in equity.* 
 
 "The equity of redemption is defined to be an equitable right 
 inherent in the land which binds all persons, whereby, although 
 the condition be not strictly performed so that the estate is for- 
 feited at law, yet if the debtor pay the money with interest, 
 within a reasonable time, he is entitled in equity to call on the 
 creditor for a reconveyance of the land."* 
 
 If the mortgagee refuses to accept the performance after 
 breach of the conditions of the mortgage, the mortgagor must re- 
 sort to a court of equity to enforce his right of redemption and 
 sectire a discharge of the mortgage, and this is the only method 
 of enforcing such right.* 
 
 Mr. Beach thus states the right of redemption: "It is an 
 established doctrine that an equity of redemption is inseparably 
 connected with a mortgage; that is to say, so long as the instru- 
 ment is one of security, the borrower has in a court of equity a 
 right to redeem the property upon payment of the loan; and this 
 right cannot be waived or abandoned by any stipulation of the 
 parties made at the time, even if embodied in the mortgage. 
 This is a doctrine from which a court of equity never deviates. 
 Its maintenance is deemed essential to the protection of the 
 debtor, who, under pressing necessities, will often consent to 
 ruinous conditions. And the mortgagee cannot, under color of 
 the mortgage, obtain a collateral advantage not strictly belong- 
 ing to the contract of mortgage. Thus, stipulations or agree- 
 ments for the payment of commissions to the mortgagee are 
 usually invalid."' 
 
 Mere lapse of time when not coupled with possession does not 
 
 ' Lewis V. Schwenn, 93 Mo. 26, 2 S. W. Rep. 391. 
 
 ' Hopkins on Real Property, 233. 3 Idem- * Idem. 
 
 5 2 Bart., Ch. Pt. 946. ' Idem. ? i Beach, Mod. Eq. Jur., \ 468. 
 
73° BQUITY PRINCIPiBS. 
 
 affect tlie right to redeem or foreclose a mortgage.' The general 
 rule is that possession by the mortgagee without any account or ac- 
 knowledgment of the mortgage bars the right of redemption/ the 
 period of time being twenty years.' But whatever may be the 
 source and ground of the limitation, it is admitted to be a mere 
 presumption, capable of being repelled by circumstances sufficient 
 to satisfy the mind that in the particular case it is ill-foimded.* 
 Thus not only will it be repelled bj' the existence of any of the 
 impediments which would repel the bar of the statute of limita- 
 tions as infancy, insanity, etc., ° "but also by any circumstances 
 of fraud or oppression on the part of the mortgagee tending to 
 clog or embarrass the redemption, and by even a slight act of the 
 mortgagee or his representative, acknowledging the continued 
 right of the mortgagor, such as by keeping private accounts of 
 the profits of the estate, as if it were still redeemable, especially 
 if kept by the mortgagor, etc. ; or by conveying subject thereto, 
 or offering to purchase it, or even by a parol recognition in con- 
 versation of the mortgagor's right, provided it were dear and 
 unequivocal. Besides the circumstances mentioned above by the 
 learned author of the institutes as sufficient to repel the pre- 
 sumption raised by lapse of time, there are many others; and, as 
 stated by him, it may be repelled by any circumstances sufficient 
 to satisfy the mind that it is ill-founded."* And the right to 
 redeem may be lost by laches.' 
 
 There is no right to redeem after sale under a decree of fore- 
 closure in the absence of a statute so providing,' unless the per- 
 son interested was not a party to the foreclosure suit, in which 
 event the right to so redeem is not lost.' 
 
 If a bill is filed to redeem land from the lien of a mortgage it 
 must allege and rely upon a tender and the money paid into 
 court." 
 
 § 548. 'Who may redeem property from the lien of a 
 mortgage — 
 
 It can be laid down as a general rule of almost if not quite 
 universal application, that all persons having any interest in or 
 lien upon the estate embraced in the mortgage, may insist upon 
 
 » I Beach, Mod. Eq. Jur., 'i 477; i Bart., Ch. Pr. 116. ' Idem, 478. 
 
 • I Bart., Ch. Pr. 116. * Idem. = Code, chap. 104, sec. 16. 
 
 « I Bart., Ch. Pr. 116, 117. ? i Beach, Mod. Eq. Jur., ? 479. Hdem, 1 481. 
 9 Idem, ? 482. '» Shank v. Groff, 45 W. Va. 543, 32 S. E. Rep. 248. 
 
MORTGAGES. 73 1 
 
 the redemption of the mortgage in order to the due enforcement 
 of their claims.' Thus, the right may be exercised by a judg- 
 ment creditor, a junior mortgagee, a purchaser of the equity of 
 redemption, a tenant in dower, a tenant by the curtesy,'' a mar- 
 ried woman who has relinquished her dower, thus preventing a 
 disastrous foreclosure and sale of the property, including her 
 dower interest,' one holding but a partial interest in the prem- 
 ises,* the heirs of the mortgagor, i' the guardian of a minor heir;' 
 but a mortgagor who has parted with his interest in the prem- 
 ises by a conveyance thereof cannot redeem;^ nor can he do so 
 by setting up any independent personal demand against the 
 mortgagee;^ nor can there be any redemption without the pay- 
 ment of the entire debt due the mortgagee or other lawful holder 
 thereof.' 
 
 In case a mortgagor, or owner of the equity of redemption, 
 redeem after a foreclosure sale to which he was not made a 
 party, and the purchaser has not entered into possession, the 
 amount to be paid in order to effect a redemption is the amount 
 of the mortgage debt with interest, and the value of the im- 
 provements made by the purchaser, less the rents and profits re- 
 ceived by him.^° 
 
 § 549. Statutes extending the time of redemption under 
 mortgages — 
 This question of the vaUdity of state legislation extending the 
 time of redemption to mortgages has within recent years been con- 
 sidered and decided by the supreme courts of Kansas, Montana 
 and Oregon, and in each state the constitutionality of such a law 
 
 * Gatewood v. Gatewood, 75 Va. 407, 412; Randall v. Duff, 79 Cal. 123; 3 
 L. R. A. 754; Henry v. Tupper, 29 Vt. 358-375; Bryant v. Erskine, 55 Me. 
 153; Bethlehem v. Annis, 40 N. H. 34-43. 
 
 ' Gatewood v. Gatewood, supra. ^ Idem. 
 
 * Hopkins on Real Property, 234. = Idem. 
 
 * Idem. ' Idem. 
 
 ' Brown v. Correll, 50 N. J. Eq. (5 Dick.) 753, 21 L. R. A. 321, and note. 
 
 5 McGongh V. Sweetzer, 97 Ala. 361, 19 L. R. A. 470; 2 Jones, Mortg., JJ 
 1067, 1075; Collins V. Riggs, 81 U. S. 14 Wall. 491, 20 L. ed. 723; McArthur 
 V. Franklin, 16 Ohio St. 193; Cabe v. Billows, 7 Gray, 148, 66 Am. Dec. 467. 
 
 "> 2 Jones, Mortg., supra; Mills v. Von Voorhes, 20 N. Y. 412; Denton v. 
 Nanny, 8 Barb. 618; Va. Duyne v. Shann, 39 N. J. Eq. 6; Newton v. Cook, 
 4 Gray, 46; Gibson v. Crehore, 5 Pick. 146; McCabe v. Bellows, 7 Gray, 148; 
 s. c. 66 Am. Dec. 467; Brown v. Sapham, 3 Cush. 554. 
 
732 EQUITY PR1NCIPI,ES. 
 
 has been upheld by the courts of these states, as not obnoxious 
 to that clause of the federal constitution forbidding a state to pass 
 any law impairing the obligation of a contract.^ 
 
 In the case of Beverly v. Bamitz, there was an appeal to the 
 supreme court of the XInited States, and upon a hearing before 
 that court the decision of the Kansas court was reversed, and the 
 law extending the time of redemption under mortgages executed 
 before the enactment of the statute, held to be unconstitutional 
 under that clause of the law forbidding a state to pass any law 
 impairing the obligation of a contract.'' This recent utterance of 
 the highest tribunal in the land on federal constitutional ques- 
 tions, would seem to settle the matter that a state cannot pass a 
 law giving further time for redemption as to mortgages in exist- 
 ence when the law is enacted.' 
 
 § 550. Of the foreclosure of mortgages — 
 
 A mortgagee after default has three remedies, any one or two 
 of which he may pursue concurrently, an action at law to recover 
 the debt, an appropriate action to recover the mortgaged prop- 
 erty, and a foreclosure of the mortgage; but when he pursues 
 these remedies concurrently, each must be governed by the rules 
 of law applicable to the forum in which it is brought.* 
 
 As in equity the mortgagor has in all cases an inherenj right 
 to redeem, so, on the other hand, the mortgagee has an inherent 
 right to come into equity to have a foreclosure. An equitable 
 action is therefore the almost universal procedure in the United 
 States for the foreclosure of a mortgage.' 
 
 The mortgage cannot be foreclosed until default has been 
 
 • Beverly v. Barnitz, 55 Kan. 466, 31 h. R. A. 74; State ex rel. Thomas 
 Cruse Sav. Bank v. Gilliam, 18 Mont. 94, 109, 31 L. R. A. 721; State, Ger- 
 man Sav. & X,. Soc. V. Sears (Or.), 43 Pac. Rep. 485. 
 
 On the original hearing of Beverly v. Bamitz, in the opinion delivered by 
 Chief-Justice Horton, a majority of the court held against the validity of 
 the Kansas law, but on rehearing before Chief -Justice Martin the law was 
 upheld. 
 
 ' Bamitz v. Beverly, 163 U. S. 118, 41 L. ed. 93. 
 
 ' See also State ex rel. Thomas Cruse Sav. Bank v. Gilliam, supra, on re- 
 hearing, 18 Mont. 94, 109, 33 L.R. A. 556; Phinney v. Phinney, 81 Me. 450, 
 4 L. R. A. 348, and notes, and elaborate note to Best v. Baumgardner (Pa. 
 St.) I L. R. A. 356-360. 
 
 * Tyson v. Weber, 31 Ala. 470; i Beach., Mod, Eq. Jur., ? 499. 
 s 1 Beach, Mod. Eq. Jur., J 490. 
 
MORTGAGES. 733' 
 
 made in the pa}nnent of the debt or some part thereof, or some 
 other covenant of the grantor, as provided by the terms of the 
 mortgage.' 
 
 The practice in suits of foreclosure in England differs from 
 that here. There the decree is simply that the mortgagor be 
 foreclosed of his equity of redemption, and that the mortgagee 
 have the absolute right of property, while here "the practice is 
 to decree a sale, and a day of redemption is given, but if the 
 mortgagor does not avail himself of this privilege, then the land 
 is sold, and the proceeds, after paying the costs of suit and sale, 
 are appHed to the payment of the debt and interest, and if there 
 be any residue it is paid to the mortgagor." ^ 
 
 In decreeing the foreclosure of a mortgage, the court must 
 exercise a sound discretion with reference to the period within 
 which the right of redemption may be exercised, and fix it ac- 
 cording to the circumstances of the case.' The usual time is six 
 months, but a shorter period may be allowed.* 
 
 It is settled that one of several co-mortgagees cannot maintain 
 a foreclosure suit, making the others defendants, unless the 
 latter are colluding with the mortgagor;' nor can a foreign per- 
 sonal representative maintain such a suit until he has qualified 
 as such in the jurisdiction where he seeks to foreclose;* nor can 
 a receiver of a building and loan association foreclose under the 
 power of sale contained in mortgages held by the association.'' 
 
 The mortgagee may foreclose although he has pledged the 
 debt as collateral security.' But in such case the pledgee must 
 be made a party, either plaintiff or defendant; and the decree 
 should provide first for the payment to the pledgee of the amount 
 due him, and the balance to the mortgagee. 
 
 The pledgee may likewise bring the suit; but he must make 
 the mortgagee a party.' 
 
 A mortgagee who is trustee, holding title to the security for 
 all the bondholders as beneficiaries, is the proper party to in- 
 stitute foreclosure proceeding, but in case of unreasonable 
 neglect, or refusal to discharge his duty, any bondholder may 
 
 ' Pnterbaugh, Ch. PI. & Pr. (3d ed.), 440. '2 Bart., Ch. Pr. 949. 
 
 3 Harkins v. Forsyth, 11 Leigh, 294. * Idem. 
 
 5 I Beach, Mod. Eq. Jur., ? 496. ' Idem. 
 
 ■J Strauss V. C. I. Bldg. & I/. Asso., 117 N. C. 308, 30 L. R. A. 698. 
 » Idem. » Idem, ? 497- 
 
734 EQUITY PRINCIPLBS. 
 
 bring an action to enforce the security for the common benefit.^ 
 And the assignee of the mortgage debt may bring suit to fore- 
 close, although the assignment has been made by mere delivery.' 
 
 In reference to the jurisdiction of the court and the extent of 
 its power to enter a decree of foreclosure, or to enter a decree 
 with reference to real estate, it is laid down by high authority 
 that a court of general equity jurisdiction, having the necessary 
 parties before it, has jurisdiction to foreclose a trust mortgage on 
 a railroad and its franchises, though part of the lien is outside 
 of the state, or to direct the trustees to make the sale under the 
 power in the mortgage.' 
 
 In Johnson v. Gibson, cited in the foot-note, the court in its 
 opinion says: "Courts of equity are concerned chiefly with 
 property rights, and when exercising this jurisdiction unaffected 
 by statutory legislation, they act either directly upon the prop- 
 erty involved in the litigation or upon the person having posses- 
 sion or control of it, depending upon the nature of the case or 
 character of the reUef sought. When the former course is to be 
 pursued, it is essential' to the court's power to act that the 
 property to be affected be within the territorial jurisdiction of the 
 court. This is not only true with respect to real property, but it 
 is equally true of personal property. A court of equity, for in- 
 stance, has no more power to lay hold of a trust fund in another 
 jurisdiction, and administer it through the instrumentality of a 
 receiver or trustee, than it has to entertain a bill for the partition 
 of land lying in a foreign jurisdiction, which all concede cannot 
 be done. Nor can a court of equity make any order or decree 
 that will, by its own inherent force, divest one person and clothe 
 another with the title to land in another county except in cases 
 expressly provided for in the statute. Yet, while this is so, it is 
 equally well settled that whej"e one is the owner of the land or 
 other property in a foreign jurisdiction, which in equity and good 
 conscience he ought to convey to another, the latter may sue him 
 in equity in any jurisdiction in which he may be found, and com- 
 
 » Seibert v. Minneapolis & St. L. R. Co., 52 Minn. 148, 20 L. R. A. 535, 
 and note to this case. 
 
 ' Idem, 498. 
 
 3 Craft V. Indianapolis, D. & W. Ry. Co. (111.), 46 N. E. Rep. 1132; 
 Enos V. Hunter, 4 Oilman, 211; Johnson v. Gibson, n6 111. App. 294, 6 N. 
 E. Rep. 205; Massie v. Watts, 6 Cranch. 148; Penn v. Lord Baltimore, 2 
 Lead. Cas. Eng. 1817, et seq., and note. 
 
MORTGAGES. 735 
 
 I)el Mm to convey the property. The decree in such case direct- 
 ing a conveyance of the property does not directly affect the title 
 of the property, yet the enforcement of it does result in a com. 
 plete change of the title. So, if a failing debtor makes fraudu- 
 lent conveyances of his real estate for the purpose of hindering 
 and delaying his creditors, the latter may maintain a bill in 
 equity in any jurisdiction where the debtor and fraudulent vendee 
 may be found for the purpose of having them declared void as 
 to the complaining creditor. In such cases, the court does not 
 act upon the land, or make any order in reference to it. It sim- 
 ply declares a certain transaction relating t6 the land fraudulent 
 as between the complainant and the offending parties, and thus 
 removes it as an obstruction to the creditor's legal remedy." 
 
 A previous demand of the mortgagor for the payment of 
 the debt or the performance of the covenant required by the 
 mortgage, is not essential to the maintenance of a foreclosure 
 suit.^ 
 
 § 551. Defenses to foreclosure suits — 
 
 It is well settled that in a suit to foreclose a mortgage, the 
 mortgagor will not be allowed to dispute his own title, as this 
 would enable him to perpetrate a fraud.* But inasmuch as there 
 must be, as we have seen,' a consideration for the mortgage, the 
 grantor therein may show that it is without consideration, and 
 thus defeat its enforcement.* And such defense may be made 
 against a suit by an assignee of the mortgage debt, if not ne- 
 gotiable.' Of course, the performance of the condition named 
 in the defeasance defeats the right of foreclosure;' thus, for illus- 
 tration, the payment of the mortgage debt.' 
 
 So, tender of payment, which must be unconditional and of 
 the whole debt, will be a good defense to a suit for foreclosure.' 
 
 § 552. The extent of the lien of a mortgage — 
 
 A mortgage remains a lien upon the property which it em- 
 braces until the debt it was given to secure is satisfied, and it is 
 
 ■ Ferris v. Spooner, 102 N. Y. lo, 5 N. E. Rep. 773. 
 
 » I Beach, Mod. Eq. Jur., ? 509. 3 Ante, sec. 538. 
 
 * Hill V. Hoole, 116 N. Y. 299, 5 L. R. A. 620. 
 
 5 Hill V. Hoole, supra, and note; Roysdale v. Hagy, 9 Gratt. 409. 
 
 • Hopkins on Real Property, 227. 1 1dem. ' Idem, 230. 
 
736 EQUITY PRINCIPLES. 
 
 not affected by a change in the evidence of indebtedness.' Thus, 
 the original bond or note may be surrendered up to the debtor 
 and a new bond or note taken in lieu thereof, and the lien still 
 attaches.* 
 
 And where a mortgage or deed of trust is given to secure the 
 payment of a certain note, it will operate to secure all renewals 
 thereof, unless a different intent appear in the instrument.' 
 
 ' Artrip V. Rasnake, 96 Va. 277, 31 S. E. Rep. 4: Stimpson v. Bishop, 82 
 Va. , at pages 198, 199, citing numerous cases. 
 
 ' Artrip v. Rasnake, supra; Stimpson v. Bishop, supra. 
 
 3 Wachovia Nat. Bank v. Ireland, 122 N. C. 571, 29 S. E. Rep. 835; Hjrman 
 V. Devereux, 63 N. C. 624; Traders' Nat. Bank v. Lawrence Mfg. Co., 96 N. 
 C. 298, 3 S. E. Rep. 363. 
 
TRUSTS AND TRUSTBES. 
 
 737 
 
 CHAPTER L. 
 
 TRUSTS AND TRUSTEES. 
 
 2 552a. Definition and kinds of trusts. 
 
 553. How an express trust may be created, and the essential elemenU of 
 
 its validity. 
 
 554. What trusts are void. 
 
 555. Of constructive trusts. 
 
 556. The character of the evidence required to establish constructi7e 
 
 trusts. 
 
 557. As to constructive trusts among near relatives. 
 
 55S. ^^^le^ parol evidence may be used to establish a trust. 
 
 559. As to charging a party holding property under a will as a trus- 
 
 tee for another. 
 
 560. Precatory trusts. 
 
 561. Charitable trusts. 
 
 562. What a sufficient declaration of a voluntary express trust. 
 
 563. As to the revocation of trusts. 
 
 564. The cancellation of trusts. 
 
 565. Trust estates are subject to the debts of the beneficiaries. 
 
 566. The rights and powers of the beneficiary with reference to the trust 
 
 fund. 
 
 567. The statute of limitations as to trusts. 
 
 568. The trustee, his appointment and removal. 
 
 569. The title or estate which the trustee takes in the trust property. 
 
 570. The powers and duties of the trustee as to the trust property. 
 
 571. The care and diligence required of trustees in the management of 
 
 the trust property. 
 
 572. The investment of the trust funds by the trustee. 
 
 573. When a purchaser from the trustee must see to the application of 
 
 the trust funds. 
 
 574. Following the trust property. 
 
 575. Remedies with reference to the unauthorized disposal or transfer of 
 
 trust property. 
 
 576. The purchase of trust property by the trustee. 
 
 577. The accounts and compensation of trustees. 
 
 § 552a. Definition and kinds of trusts — 
 
 A trust is defined to be an obligation under which a person, in 
 whom the legal title to property is vested, is bound in equity to 
 deal with the beneficial interest therein in a particular manner, 
 
 47 
 
738 BQUITY PRINCIPiBS. 
 
 either wholly in favor of others, or partly in favor of others 
 conjointly with himself.^ 
 
 Different authors have given different classifications of trusts' 
 without, however, really essential differences; so that we have 
 pursued that course that will enable us to most conveniently 
 consider the subject, and that which, in the main, is adopted by 
 our own courts. This classification makes two general divisions 
 of the subject — {a) into direct or express trusts (that is those 
 springing from the agreement of the parties)- -and {b) into con- 
 structive or implied trusts (that is those created by the rules and 
 principles of equity).' Under this latter class fall all those trusts 
 known distinctively as implied or constructive, as well as those 
 called resultant, those arising from acts of fraud or otherwise— 
 in short all those that do not spring from the agreement of the 
 parties.* 
 
 A declared or express trust is one created by words, either ex- 
 pressly or impliedly evincing an intention to create a trust.' If 
 the words be contained in a document such document is called a 
 settlement, whether it be a simple writing, a deed, or a will. 
 The person who provides the trust property is called the settlor.* 
 
 A constructive trust is one not created by any words, either 
 expressly or impliedly evincing a direct intention to create a trust, 
 but only by the construction and operation of equity in order to 
 satisfy the demands of justice.' 
 
 As to the nature of the duties imposed upon the trustees, 
 there is a further division of trusts into simple and special. The 
 former is one in which the trustee is a mere depositary of the 
 
 • Fetter on Equity, 163, 164. For a brief account of the origin and his- 
 tory of trusts we refer to this same author, pp. 164-168. 
 
 » Currence v. Ward, 43 W. Va. 367, 27 S. E. Rep. 330. 
 
 3 Currence v. Ward, supra. * Idem; Hopkins on Real Property, 257. 
 
 5 Currence v. Ward, supra; Tichenell v. Jackson, 26 W. Va. 460; Underhill 
 on Trusts and Trustees, 10, 11. 
 
 ' Underhill on Trusts and Trustees, 11. 
 
 ' Currence v. Ward, supra; Underhill on Trusts and Trustees, 11. "Con- 
 structive trusts include all those instances in which a trust is raised by the 
 doctrines of equity for the purpose of working out equity in the most efficient 
 manner, where there is no intention of the parties to create such a relation, 
 and in most cases contrary to the intention of the one holding the legal title, 
 and where there is no express or implied, written or verbal, declaration of 
 the trust." Orth v. Orth, 145 Ind. 182, 32 I<. R. A. 306, citing numerous 
 authorities. 
 
TRUSTS AND TRUSTEES. 739 
 
 trust property, with no active duties to perform, and may be re- 
 quired in equity to convey the property to the beneficiaries upon 
 their demand or direction. ^ Under our statute, in the case of a 
 mere simple or passive trust for the use of another, the posses- 
 sion, control and ownership are transferred by mere operation of 
 law, to the cestui que trust or beneficiary.' Our statute also pro- 
 vides that "any person holding, or who may hereafter hold, as 
 trustee for any married woman, any real' or personal estate or 
 other property, under any deed or conveyance or otherwise, on 
 the written request of such married woman, accompanied by the 
 certificate of a judge of the circuit court of the county wherein 
 the property is situated, that he has examined the condition 
 and situation of the property, and made due inquiry into the 
 capacity of such married woman to manage and control the 
 same, may convey to such married woman, by deed or otherwise, 
 all or any portion of said property, or the rents, issues and profits 
 thereof for her sole and separate use and benefit. ' ' ' 
 
 A special or active trust is one in which a trustee is appointed 
 to carry out some scheme particularly pointed out by the set- 
 tlor, and is not (as in the case of a simple trust) a mere passive 
 depositary of the estate, but is called upon to exert himself 
 actively in the execution of the settlor's intention. The trus- 
 tee of a special trust is called an active trustee.* 
 
 Express trusts are further divided into executed and execu- 
 tory." The former is one ftdly and finally executed by the per- 
 son creating it, so that nothing further remains to be done in 
 order to make it effective;' while the latter is not fully and 
 finally declared, but requires some other act or acts in order to 
 perfect it and carry out the intention of tlie settlor.' 
 
 § 553' How an express trust may be created, and the es- 
 sential elements of its validity — 
 Owing to the diverse forms which express trusts assume in 
 the manifold transactions of life, the courts,' with great una- 
 
 ' Underhill on Trusts and Trustees, 12; 2 Wash., Real Prop. (4th ed.) 465. 
 
 ' Code, chap. 71, sec. 14. ^ Acts, 1893, chap. 3, sec. 4. 
 
 < Underhill on Trusts and Trustees, 13; Wash., Real Prop. (4th ed.), 469; 
 Carney v. Kain, 40 W. Va. 758, 23 S. E. Rep. 650. 
 
 5 Hopkins on Real Prop. 253. 
 
 ' McCartney v. Ridgway, 160 111. 129, 32 ly. R. A. 555; Massey v. Hutch- 
 inson, 118 111. 80, 7 N. B. Rep. 269. ' Idem. 
 
740 EQUITY PRINCIPI,ES. 
 
 nimity, hold that no particular words are necessary or essential to 
 their creation.^ This will become quite apparent in the course 
 of the consideration of the subject and the adjudicated cases 
 illustrative of it. 
 
 For instance, "a trust is created by a letter from an tmcle to 
 a nephew who had written to claim a sum of money, acknowl- 
 edging that the nephew had earned it, and saying, 'I had the 
 money in the bank the day you were twenty-one years old that 
 I intended for you,* and 'I don't intend to interfere with the 
 money in any way until I think you are capable of taking care 
 of it;' then adding in a postscript, 'You can consider the money 
 on interest."" So where a person "makes a deposit of money 
 in a bank to the credit of himself as 'trustee' for certain chil- 
 dren named, and nothing remains in him but a mere legal 
 title.'" And "a deposit of money in a bank in the name of an- 
 other person with depositor's name as trustee following it, and 
 a statement by him to the other that he had made the deposit, 
 which would belong to the other at his death, constitutes a de- 
 posit in trust, which will be valid, although the depositor re- 
 tained the deposit books until death."* And the acceptance of a 
 deed under a promise to pay the debts of the grantor creates a 
 trust, and the land will be, treated as trust property and subjected 
 to the payment of such debts;' and the grantee also becomes 
 primarily liable.* 
 
 It is not necessary that a trust of any kind in this state, either 
 in real or personal estate, be in writing. Its creation may be by 
 mere verbal agreement.^ Thus, an agreement not in writing, 
 made prior to a judicial sale, whereby a party promises to buy in 
 the land at such sale in his own name for the benefit of the 
 debtor, the debtor to pay the purchase-money and keep the land, 
 constitutes an express trust.* So, when a debtor has conveyed 
 land to a trustee to secure a debt, and afterwards a third person 
 and a debtor agree that such third person shall purchase the land 
 and hold it as a security for the purchase-money he pays, and 
 
 ' Bibb V. Hunter, 79 Ala. 351; Maught v. Getzendanner, 65 Md. 527, 5 Atl. 
 Rep. 471; Hamer v. Sidway, 124 N. Y. 538, 12 h. R. A. 463. 
 ' Hamer v. Sidway, 124 N. Y. 538, 12 L. R. A. 463. 
 ' Sayre v. Weil, 94 Ala. 466, 15 I,. R. A. 544. 
 « Re A.tkinson, 16 R. I. 413, 3 I,. R. A. 392. 
 
 s Moore v. Triplett, 96 Va. 603, 32 S. E. Rep. 50. « Idem. 
 
 ' Currence v. Ward, 43 W. Va. 367, 27 S. E. Rep. 329. » Idem. 
 
TRUSTS AND TRUSTEES. 741 
 
 the debtor acquiesces and the other purchases the land, this 
 transaction constitutes a trust. ^ 
 
 It is not necessary that an express trust should embody any 
 consideration, if it has been fully executed by the settlor.* Thus, 
 ' 'if a conveyance be made by A. to B. , and at the same time and 
 as a part of the same transaction B. executes a written paper, 
 wherein he declares that he purchased the land in trust for C. , 
 this constitutes an executed and express trust, and as such is 
 valid, though C. gave no consideration whatever for being thus 
 made the cestui que trust. ' ' ' 
 
 If a trust has been created by a written instrument, it is not 
 necessary that it contain any declaration of trust in order to in- 
 sure its validity.* The trust may be manifested by any writing 
 signed by the party to be charged, or by the party who is enti- 
 tled to declare the trust.* And the terms may be embraced in 
 several papers, if such papers are so connected and referred to 
 as to clearly show that they have reference to the same transac- 
 tion, and together clearly point out the nature and objects of 
 the trust.' Nor is it necessary that the writing should be inter 
 partes? 
 
 It is essential, however, to a valid trust that it be definite in 
 its objects; that is, that the subject and the beneficiaries be 
 designated or be certain.' To illustrate: If a grant of land be 
 made in trust for a burial ground for "all the white religious 
 societies of Christians and the members of such societies and for 
 no other purpose," such grant is void for want of certainty in 
 the beneficiaries.' So, also, a devise in trust for a church or 
 unincorporated religious society is likewise void for uncertainty.^* 
 
 There must be a trust subject, but it may exist in any prop- 
 
 " Nease v. Capehart, 8 W. Va. 95. 
 
 ' Titchenell v. Jackson, 26 W. Va. 460; Massey v. Huntington, 118 111. 80, 
 7 N. E. Rep. 269; McCandless v. Warner, 26 W. Va. 754. 
 3 Titchenell v. Jackson, supra. 
 4Kintner v. Jones, 122 Ind. 148, 23 N. E. Rep. 701; i Beach, Mod. Eq. 
 
 Jur., ? ISO. 
 
 5 I Beach, Mod. Eq. Jur., | 150. * Idem. ' Idem. 
 
 » Brown v. Caldwell, 23 W. Va. 187; Harrison v. Harrison, 2 Gratt. i; 
 Carskadon v. Forreyson, 17 W. Va. 43. 
 
 9 Brown v. Caldwell, supra. See also Carpenter v. Miller, 3 W. Va. 174. 
 
 ■" Mong V. Roush, 29 W. Va. 119, 11 S. E. Rep. 906; Wilmoth v. Wil- 
 moth, 34 W. Va. 426, 12 S. E. Rep. 73i; Pack v. Shanklin, 43 W. Va. 304, 
 37 S. E. Rep. 389- 
 
742 EQUITY PRINCIPI,ES.- 
 
 erty, real or personal, wWcli is, in the eye of a court of equity, 
 property of value/ 
 
 § 554. What trusts are void — 
 
 It is E. well-settled principle in the law of trusts, that a trust 
 created for an illegal purpose is void.' The purposes for which 
 trusts are illegal may be thus summarized: 
 
 (a) Trusts for unreasonable accumulation, or the tying up 
 property for an unreasonable period. 
 
 (i) Trusts which offend against the law of "perpetuities. 
 
 (^) Trusts tending to the general restraint of marriage.' 
 
 If there are two purposes expressed in a trust, not essentially 
 connected with each other, one legal and the other not, effect 
 will be given to that which is lawful, though the other may be 
 declared void.* 
 
 The law of perpetuity applies as well to the accumulations or 
 the tying up of the earnings of property as to the vesting of the 
 title of the estate itself, both of these subjects being regulated 
 by the common law, there being no statute bearing thereon in 
 this state. There are statutory enactments as to the accumtila- 
 tions of property both in England and many of the states of the 
 Union.' But, of course, in these we are not interested. Mr. 
 Lewis defines the rule as to a perpetuity with clearness and acr 
 curacy, when he declares it to be ' 'a future limitation, whether 
 
 ■ Currence v. Ward, supra; Roth v. Michaels, 125 111. 325, 17 N. E. Rep. 
 809. 
 
 "All property, real or personal, legal or equitable, at home or abroad, and 
 •whether in possession or action, remainder, reversion, or expectancy, may- 
 be made the subject of a trust, unless the policy of the law or any statutory 
 enactment prohibits the settlor from parting with the beneficial interest in 
 it; or, in case of real estate, unless the tenure under which it is holden is 
 inconsistent with the trust sought to be created." TTnderhill on Trusts and 
 Trustees, 57. For a full discussion of this subject, with American note, see 
 Underbill, T. & T. 57-63. 
 
 • Underbill on Trusts and Trustees (ist Am. ed.), 64, and notes. 
 
 3 Idem, 64-67. 
 
 < Loullard v. Coster, 5 Paige, 172, 3 Law ed. 674; Kennedy v. Hoy, 105 N. 
 Y. 134, II N. E. Rep. 390; Culross v. Gibbons, 130 N. Y. 447, 29 N. E. Rep. 
 839; Sears v. Putnam, 102 Mass. 9. 
 
 s Jarman on Wills (5th Am. ed.), 573, notes, In which the statutes of Ala- 
 bama, Pennsylvania and New York are referred to, and the English stat- 
 ute is considered and discussed in the text. See i Beach, Mod. Eq. Jur., 
 1 153- 
 
TRUSTS AND TRUSTEES. 743 
 
 executory or by way of remainder, and either of real or personal 
 property, which is not to vest until after the expiration of or will 
 not necessafily vest within the period fixed and prescribed by law 
 for the creation of future interests, and which is not destructible 
 by the persons for the time being entitled to the property, sub- 
 ject to future limitations.^ 
 
 The rule, however, regards not the possession, but the title or 
 absolute right. If that vests within the period prescribed, the 
 rule is satisfied.* 
 
 In Thellusen v. Woodford,' the doctrine is laid down in broad 
 terms that if the vesting is deferred beyond the legal period, the 
 limitation is void. In that remarkable case, the vesting of the 
 estates and limitations thereon were within the period of life or 
 lives in being and twenty-one years and a fraction thereafter; 
 but the possession or manual control far exceeded that period, 
 stretching out over a period of nine lives. And yet the will was 
 sustained by the unanimous opinion of the judges and was after- 
 wards affirmed by the house of lords. But the absolute interest, 
 however parceled out, must be so limited as necessarily to vest, 
 if at all, within the legal period. The rule against perpetuities 
 has always in terms required the vesting of estates within the 
 prescribed limits. It is, of course, no objection to the validity 
 of a devise that it postpones the possession beyond the limits 
 prescribed for the vesting of estates; for in such a case, the doc- 
 trine under consideration has no other effect than to vacate the 
 postponement and thereby accelerate the possession.* 
 
 The rule of perpetuity clearly defined is, that every future 
 limitation, whether by way of legal remainder, executory devise, 
 or trust of real or personal property, the vesting absolutely as to 
 personalty or in fee or tail as to realty, is postponed beyond a life 
 or lives in being and twenty-one years afterwards (with a future 
 period for gestation where it exists), is void." 
 
 We see from these authorities, and it will be seen from all 
 
 ' lycwis on Perp. 164; I Jarman on Wills (5th Am. ed.), top p. 545 and 
 note. 
 ' Loring V. Blake, 98 Mass. 253, cited in note to i Jarman on Wills, top 
 
 p. 545- 
 
 3 4 Ves. Jr. 227. 
 
 * I Jarman on Wills, top pp. 551 and 562, where this doctrine is announced 
 and cases cited illustrative of the same. 
 
 5 tJnderhill on Trusts and Trustees, 68. 
 
744 EQUITY PRINCIPI<ES. 
 
 that can be found bearing upon the doctrine (and they are in- 
 deed numerous), that the rule of perpetuity regards only the 
 vesting of the estate, only the title, the ownership, not the possession, 
 not the enjoyment, not the personal control; these may be left to the 
 good judgment and peculiar knowledge of the testator or settlor, 
 so as to enable him to do with his estate as will best subserve 
 the true interests of those who are the objects of his bounty or 
 benefaction. 
 
 It is the dragging of the title, as it were, by the testator or set- 
 tlor, into the grave after him — taking that out of the marts and 
 channels of commerce and trade — which the law abhors. 
 
 "I have always understood, and it has never been doubted 
 before, that it is in the power of a testator to direct accumula- 
 tion of the rents and profits of his estate for as long a time as 
 that during which the law allows him to render the estate un- 
 alienable." ' 
 
 It seems to have been the acknowledged rule of law, from 
 the earliest times in England, that the income of the estate 
 might be accumulated so long as the vesting of an estate might 
 be deferred by an executory devise. This was not found em- 
 barrassing in practice until the case of Mr. Thelluson's will.* 
 The doctrine as announced in Thelluson's case, supra, is the 
 common law on the subject of testamentary accumulation, and 
 is in force with us, as there has been no statute modifying it. 
 It continued to be the law of England until modified by an act 
 of parliament, 39 and 40 George III, ch. 98, to restrain such dis- 
 positions and accumulations in the future. 
 
 Trusts tending to promote immorality are those created for the 
 purpose of propagating atheism, infidelity or hostility to the 
 exijsting laws of the government.' 
 
 A trust conditioned upon the absolute restraint of marriage is 
 
 ' Thelluson v. Woodford, supra. 
 
 ' I Redf. on Wills, 560. There is a very able and lucid article on the 
 subject of "Executory Interests" published in the Virginia Law Register, 
 Vol. IV, No. lo, pp. 633-661. 
 
 3 Underhill on Trusts and Trustees (ist Am. ed.), 65, citing several cases. 
 
 Trusts hostile to our governments, state and national, are those which as- 
 sume the form of combinations and monopolies, which are considered in- 
 cidentally under the subject of "Strikes and Boycots," as the same may be 
 iiiade the subject of jurisdiction for awarding injunctions. 
 
TRUSTS AND TRUSTEES. 745 
 
 void, and tlie donee has a right to the estate.^ The law recog- 
 nizes as valid conditions in restraint of marriage those which are 
 just, fair and reasonable;' as one not to marry a particular per- 
 son or class of persons;' not to marry until the beneficiary arrives 
 at the age of twenty-one years,' and not to marry a second time.^ 
 
 § 555- Of constructive trusts — 
 
 As we have already seen,' there is no. difference in principle, 
 so far as we can discern, between constructive, resultant or im- 
 plied trusts. Each rests, as a general rule, upon the wrongful 
 act of the party with reference to the funds sought to be charged 
 with the trust. And a constructive trust being a mere creature 
 of equity, it can never arise where there is an express trust de- 
 clared by the parties and evidenced by written declaration;' im- 
 plications in such case are absolutely excluded.* 
 
 One of the most common instances of constructive trusts, 
 usually known as a resultant trust, is where one with another's 
 money, the parties being at the time strangers to each other, 
 buys an estate and takes the conveyance in his own name. In 
 such case, by presumption of law, a trust results in favor of him 
 whose money is thus used.' But even in a case of this sort 
 there can be no resultant trust unless it arises at the time of the 
 conveyance.'" It must be coeval with the deed or it cannot 
 exist, ^' and it is essential that the money should be paid at the 
 time of the conveyance, as a subsequent payment will not by 
 
 ' Idem, 76, note, citing Otis v. Prince, 10 Gray, 581; Williams v. Cowden, 
 13 Mo. 211. See also Phillipps v. Ferguson, 85 Va. 569, 8 S. E. Rep. 241. 
 
 = Phillipps V. Ferguson, supra. 3 idem. 
 
 -• Reuff V. Coleman's Heirs, 30 W. Va. 171, 3 S. E. Rep. 597. 
 
 5 Underbill on Trusts, 77, 78, citing numerous cases. *Ante, \ %%ia. 
 
 7 Coleman v. Parran, 43 W. Va. 737, 28 S. E. Rep. 769. » Idem. 
 
 •> Pumphrey v. Brown, 5 W. Va. 107; Bright v. Knight, 35 W. Va. 290, 13 
 S. E. Rep. 63; Bank of U. S. v. Carrington, 7 Leigh, 566; Kane v. O'Con- 
 nor, 78 Va. 76; Sinclair v. Sinclair, 79 Va. 40; Donaghe v. Tarns, 81 Va. 
 132; Hamilton v. Steele, 22 W. Va. 348; Currence v. Ward, 43 W. Va. 367, 
 27 S. E. Rep. 329; McGinnis v. Curry, 13 W. Va. 64. 
 
 ■" Beecherv. Wilson, 84 Va. 814, 6 S. E. Rep. 209, 211; Miller v. Blose, 30 
 Gratt. 744; Moorman v. Arthur, 90 Va. 455, 18 S. E. Rep. 869; Smith v. 
 Turley, 32 W. Va. 14, 9 S. E. Rep. 46; Webb v. Bailey, 41 W. Va. 463, 23 S. 
 
 E. Rep. 647. 
 
 " Beecher v. Wilson, supra; Harris v. Elliott, 45, W. Va. 245, 32 S. E. 
 
 Rep. 176- 
 
746 EQUITY PRINCIPI,BS. 
 
 relation attach a trust to the original purchase.' It is not neces- 
 sary, though, that the partj' in whose favor the trust is claimed 
 should actually count out and pay down the purchase-money to 
 the vendor. It is sufficient if the money or its equivalent is 
 furnished to the party who pays such purchase-money." If, how- 
 ever, a trustee thus uses trust funds it is not necessary to the 
 creation of the trust that the money be paid at the time of the 
 purchase. The right may be enforced whether the payment be 
 made before or after the purchase, so long as the trust funds can 
 be traced into specific property and against all persons except 
 bona fide purchasers.' If the person in whose favor or name 
 the conveyance is taken is a near relative of the person who 
 advances the purchase-money, the presumption is that the con- 
 sideration advanced was intended as a gift or advancement, and 
 no resulting trust will arise in such case. This presumption, 
 however, is one of fact and not of law, and may be rebutted by 
 the evidence and circumstances surrounding the transaction.* 
 
 Where one person does not furnish all the money with which 
 the land is purchased, but only a part thereof, the trust arises in 
 proportion to the extent of the money furnished. ° Under this 
 principle, if two partners agree, by parol or otherwise, that the 
 profits of the firm shall be invested in real estate for their joint 
 benefit, and one partner receives the profits, invests the same in 
 real estate and takes the conveyance in his own name alone, a 
 trust will be held in equity to have resulted in behalf of the 
 other partner to the extent of his interest in the funds thus in- 
 vested.' But for the purpose of the partnership debts and lia- 
 bilities, real estate thus purchased will be treated as personalty, 
 without reference to the person in whom the legal title for the 
 time being may subsist.^ 
 
 So, under this principle we have here presented, one who, 
 acting as the agent of another in the purchase of land, takes 
 
 ' Beecher v. Wilson, supra; Harris v. Elliott, supra. 
 
 " Seller, v. Mohn, 37 W. Va. 507, 16 S. B. Rep. 496. 
 
 3 Webb V. Bailey, 41 W. Va. 463, 23 S. E. Rep. 645. 
 
 < Hamilton v. Steele, 22 W. Va. 348. 
 
 5 Seller v. Mohn, 37 W. Va. 507, 16 S. E. Rep. 496; Murray v. Sell, 23 W. 
 Va. 475; Smith v. Patton, 23 W. Va. 541; Pumphrey v. Brown, 5 W. Va. 
 107; Heiskell v. Trout, 31 W. Va. 810, 8 S. E. Rep. 557; Currence v, Ward, 
 43 W. Va. 367, 27 S. E. Rep. 329. 
 
 ' McCully V. McCuUy, 78 Va. 159. ^ Diggs v. Brown, 78 Va. 292. 
 
TRUSTS AND TRTJSTEBS. 
 
 747 
 
 the deed in his own name, is treated as having purchased for 
 his principal, and will be held as trustee for him.^ 
 
 § 556. The character of the evidence required to establish 
 a constructive trust — 
 
 It is not necessary that the evidence to estabhsh a constructive 
 trust be in writing, but the facts and circumstances to show the 
 existence of such a trust may be proved by oral testimony, pro- 
 vided such testimony be full, clear and satisfactory.* 
 
 If, however, there has been a great lapse of time or laches on 
 the part of the cestui que trust, the courts will not enforce it.' 
 
 In Troll V. Carter,* Green, J., says: "So, too, all the author- 
 ities agree that an equitable claim of any sort, and especially one 
 which depends on parol testimony only, will not be recognized 
 after great lapse of time, during which time it has been ignored, 
 where no satisfactory reason can be assigned for not setting up 
 the claim sooner. And this is more especially true when the 
 equitable claim is of a character which required clear and ex- 
 plicit evidence to sustain it, such lapse of time itself rendering 
 the evidence, which might otherwise have been regarded as suf- 
 ficiently dear and explicit, unsatisfactory. ' ' 
 
 § 557- As to constructive trusts among near relatives — 
 
 As we have already seen,' if the one advancing the money and 
 the one receiving the deed are near relatives, the presumption of 
 fact is that a gift was intended. It is decided in an early case in 
 our state' that "where a husband or father purchases the land in 
 the name of a wife or child, or in his own name, and in either 
 case procures a conveyance to be made to the wife or child, there 
 is no restdting trust for the husband or father, as in the case of 
 a purchase by one and a conveyance to a stranger. ' ' 
 
 In a later case it is made a query whether a resulting trust 
 arises in favor of a wife, if the husband acquires property with 
 
 ' Jackson v. Pleasanton, 95 Va. 654, 29 S. E. Rep. 680. 
 
 ' Bright V. Knight, 35 W. Va. 290, 13 S. E. Rep. 63; Donaghe v. Thomas, 
 81 Va. 132; Parker v. Logan, Bros. & Co., 82 Va. 376; Armstrong v. Bailey, 
 43 W. Va. 778, 28 S. E. Rep. 766; Rogers v. Rogers, 52 S. C. 388, 29 S. E. 
 Rep. 812. 
 
 3 Pusey V. Gardner, 21 W. Va. 470; Smith v. Turley, 32 W. Va. 14, 9 S. E. 
 Rep. 46. 
 
 " 15 W. Va. 582, 583. 
 
 5 Ante, I 555. ' Ivockhard & Ireland v. Beckley, 10 W. Va. 87. 
 
748 EQUITY PRINCIPI,BS. 
 
 her separate estate, and without her knowledge and consent takes 
 the title in his own name.^ But so far as the rights of a wife are 
 now concerned, with reference to this matter, they are clearly de- 
 fined and firmly fixed by the decision of our court in the recent 
 case of Berry v. Wiedman,^ wherein the court holds that when a 
 husband purchases property with his wife's money, and takes the 
 deed in his own name, a resulting trust is raised in her favor, 
 unless it is shown that she intended the money as a gift or loan 
 to her husband, the establishment of which fact devolves on the 
 husband, or those claiming under him. But the converse of this 
 doctrine does not obtain, inasmuch as a constructive trust will 
 not arise in favor of one paying for land conveyed to another, if 
 such other person be his wife, or son or a party as to whom the 
 one paying the money voluntarily places himself in loco parentis 
 in the transaction.^ 
 
 § 558. When parol evidence may be used to establish a 
 trust — 
 At common law a trust, either in real or personal property, 
 could be created by parol; and personal property not being within 
 the statute of frauds a trust therein may still be so created.* In 
 most of the states no parol trust can be created in lands, but it must 
 be evidenced by some instrument in writing. ° As we have already 
 seen,* in this state the creation of a trust may be by parol 
 whether it be an express or constructive one. But in order that 
 parol evidence may be resorted to for the creation of an express 
 trust in realty, the agreement must precede the transfer of the 
 legal title, for if subsequent, it would come within the provisions 
 of the statute of frauds requiring the transfer or sale of lands to 
 be in writing;' and the evidence must be clear and unquestion- 
 able.' 
 
 ' Smith V. Turley, 32 W. Va. 14, 9 S. E. Rep. 46. 
 
 ' 40 W. Va. 36, 20 S. E. Rep. 817. 
 
 3 Harris v. Elliott, 45 W. Va. 245, 32 S. E. Rep. 176. 
 
 ■• Currence v. Ward, 43 W. Va. 367, 27 S. E. Rep. 330; i Beach, Mod. Eq. 
 Jur., 2 149. But see Troll v. Carter, 15 W. Va. 580; Bispham, Eq., ? 63; I 
 Perry, Trusts, 2 86; Hill, Trustee, \ 57. 
 
 s Idem; Troll v. Carter, supra. « Ante, \ 553. 
 
 7 Currence v. Ward, 43 W. Va. 367, 27 S. E. Rep. 329, 330; Smith v. Tur- 
 ley, 32 W. Va. 14, 9 S. E. Rep. 46. 
 
 » Armstrong v. Bailey, 43 W. Va. 778, 28 S. E. Rep. 766. 
 
TRUSTS AND TRUSTEES. 749 
 
 In accordance with this principle if a party obtains a deed with- 
 out any consideration, upon a parol agreement that he will hold 
 the land in trust for the grantor, such trust will not be enforced, 
 as it would \dolate the statute of frauds and this general rule, to 
 permit parol evidence to establish such a trust. ^ 
 
 But it is otherwise if the deed is obtained without any con- 
 sideration, upon a parol agreement that the grantee will hold the 
 land in trust for third parties. In such a case equity will enforce 
 the parol trust in favor of the cestui que trust, as not to do so 
 would permit the grantee to commit a fraud." 
 
 In Troll V. Carter, cited in the foot-notes, the court did not de- 
 cide the point, but said it was questionable, whether a court of 
 equity would enforce a parol agreement to hold land in trust for 
 a third party made by the grantee with the grantor at the time 
 of the execution of the deed, when the deed is for a valuable con- 
 sideration. 
 
 In McCandless v. Warner,' the same point was before our 
 court, and after an examination of many cases, the court says: 
 "From the authorities we deduce these principles, that if a party 
 obtain a deed for property for valuable consideration paid by 
 him, under section seven of the English statute of frauds it may 
 be shown that such party holds the property so conveyed in 
 trust for another; that such trust need not be created in writing, 
 but must be manifested and proved in writing by the party en- 
 abled by law to declare the trust; and such writing must show 
 both the existence of the trust and the terms thereof; the writing 
 to prove such trust need not be made at the time the trust is 
 created, but may be made any time thereafter, and it is not nec- 
 essary that it be addressed to the cestui que trust or to any other 
 person. I<etters after the creation of the trust, written to any 
 one, in which the trust and the terms thereof are admitted and 
 declared, are a sufficient declaration of such trust within the 
 statute; and it is not necessary that the trust and the terms 
 thereof shall all appear in one letter or other writing, but if they 
 can be ascertained with reasonable certainty from a number of 
 
 ' Troll V. Carter, 15 W. Va. 567; Cain v. Cox, 23 W. Va. 594; Zane v. Fink, 
 18 W. Va. 755, Pusey v. Gardiner, 21 W. Va. 474. See also Feeney v. How- 
 ard, 79 Cal. 525, 4 L. R. A. 826; Handlan v. Handlan, 42 W. Va. 309, 26 S. 
 
 E. Rep. 179- 
 ' Troll V. Carter, supra; Zane v. Fink, supra. a 26 W. Va. 754, 780. 
 
750 EQUITY PRINCIPI,ES. 
 
 letters, or from one or more letters and other writings, it is suf- 
 ficiently proved. In ascertaining tlie meaning of such writings, 
 the court will, if necessary, look to the surrounding circum- 
 stances." 
 
 In Nash v. Jones,^ our court holds that, "where a man merely 
 employs an agent to buy an estate, who buys it for himself and 
 denies the trust, and no part of the purchase-money is paid by 
 the principal, and there is no written agreement, he cannot com- 
 pel the agent to convey the estate to him, as that would be in. 
 violation of the statute of frauds." 
 
 § 559. As to charging a party holding property under a 
 will as a trustee for another — 
 
 The principle which allows a party as a legatee or devisee un- 
 der a will to be charged as a trustee for the use of another, is 
 referable to the doctrine of constructive trusts, and is really one 
 of the many phases or classes thereof. Thus, "if a person, by 
 his promises or by any fraudulent conduct, with a view to his 
 own profit, prevents a deed or will from being made in favor of a 
 third person, and the property intended for such third person 
 afterwards comes to him who fraudulently prevented the execu- 
 tion of the will or deed, he will be held to be a trustee for the 
 person defrauded to the extent of the interest intended for 
 him."' 
 
 The obtaining a legacy or devise in form absolute from a tes- 
 tator by one under a parol promise by the latter to the former 
 that he will hold it and apply it to the use and benefit of another, 
 will create a trust enforceable in equity, notwithstanding the 
 statute of wills or the statute of frauds.' 
 
 The active co-operation by a legatee in the making of a legacy 
 absolute in terms, or his silent acquiescence therein, with knowl- 
 edge that the testator expects he will apply the legacy to a 
 purpose indicated by him, has the same effect as an express 
 
 " 41 W. Va. 769, 24 S. E. Rep. 592. 
 
 " Bennett v. Harper, 36 W. Va. 546, 15 S. E. Rep. 143, opinion of Lucas, 
 J., at page 145 of S. E. Rep., citing i Perry, Trusts, p. 208, ? 181. 
 
 3 Gilpatrick v. Glidden, 81 Me. 137, 2 t,. R. A. 662, and the note thereto; 
 Gore V. Clark, 37 S. C. 537, 20 L. R. A. 465, and the elaborate note, pp. 465- 
 477; Trustees of Amherst College v. Ritch, 151 N. Y. 282, 37 L. R. A. 305; 
 Tennant v. Tennant, 43 W. Va. 547, 27 S. B. Rep. 334. 
 
TRUSTS AND TRUSTEES. 75 1 
 
 promise for tlie purpose of creating a secret trust for the disposi- 
 tion of the property in accordance with the testator's wishes.^ 
 
 § 560. Precatory trusts — 
 
 A precatory trust is one of the various forms of an express 
 trust,- and the "doctrine (applicable to cases where there is such 
 a testamentary disposition of property to one as is susceptible of 
 a trust in behalf of others) is founded upon the cardinal rule in 
 the construction of wills, that the testator's intent, when ascer- 
 tained, is to be carried out, by whatever words conveyed. 
 Hence, it has come to be well settled, in such cases, that in order 
 to effectuate the testator's intention, words of request, recom- 
 mendation or hope, may be treated as imperative; and shall be 
 so treated where the objects of the precatory language are cer- 
 tain, and the subjects contemplated are also certain; unless a 
 clear discretion or choice to act or not to act be given, or the 
 prior dispositions of the property import absolute or uncontrol- 
 able beneficial ownership."' 
 
 § 561. Charitable trusts — 
 
 The English statute of charitable uses * was long ago repealed 
 in Virginia,' and with us has never at any time been in force, so 
 that courts of chancery have no jurisdiction to decree charities 
 where the objects are indefinite and uncertain.' 
 
 But it is only because of this, and not on the ground that 
 charitable trusts are entirely rejected as stated by a recent author.^ 
 
 In Virginia there has never been anything like hostility to re- 
 ligious charities, the uniform policy of its legislation having 
 been to encourage and foster charities for educational and re- 
 ligious purposes.* The same may be truly said of the policy 
 
 ' Trustees of Amherst College v. Ritch, supra. 
 
 = Underh., Trusts (ist Am. ed.), 11. On this subject, see Id., 25-37; 
 Knox's Appeal, 6 L. R. A. 353, note. 
 
 3 Harrisons v. Harrison's Adm'x, 2 Gratt. i, 18. 
 
 < 39 and 43 Elizabeth, 1597. 
 
 5 Gallegov. The Att'y Gen'l, 3 Leigh, 450. 
 
 '■Idem; Wilson v. Perry, 29 W. Va. 169, i S. E. Rep. 302; Mong v. Roush, 
 29 W. Va. 119, II S. E. Rep. 906. 
 
 ^ I Beach, Mod. Eq. Jur., ? 206. 
 
 8 Trustees Gen. Assem. Presbjrterian Church v. Guthrie, 86 Va. 125, 10 
 S. E. Rep. 318; P. Episcopal E. Society v. Churchman, 80 Va. 718, 
 
752 EQUITY PRINCIPLES. 
 
 of our own state, inasmuch as in those cases where the courts de- 
 clined to uphold the charities of the testator, it was upon the sole 
 ground of the indefiniteness or uncertainty of the benficiaries.^ 
 
 In order that a court of equity may enforce a charitable trust, 
 as in the case of any other trust, the subject must be certain and 
 the object must be as certain as the subject.^ 
 
 It would seem to be the general rule deducible from the cases, 
 that the donee should be either a natural or artificial person in 
 order to enjoy the bounty of the donor; that is, some particular, 
 certain person or corporation clearly pointed out by the settlor, or 
 so designated that his identity may be the subject of prac- 
 tical determination by means of extrinsic evidence.' Hence a 
 bequest to the trustees of a church or unincorporated religious so- 
 ciety is void.* 
 
 § 562. W^hat a sufficient declaration of a voluntary ex- 
 press trust — 
 
 We are now to consider what acts or statements are within 
 themselves sufficient for the creation of a voluntary, express trust, 
 and particularly where the donor retains the title and declares 
 himself a trustee for the intended beneficiary. It is said on 
 high authority ' that the courts will enforce a voluntary trust,, 
 even against the settlor himself or his personal representatives, 
 if (a) it is created by will; or, (^) if the settlor has transferred,, 
 or done all in his power to transfer, the trust property to a trus- 
 tee; or, (f) if the settlor has declared or impliedly constituted 
 himself a trustee for the purpose of the trust.* It is scarcely- 
 necessary to observe that when the trust is created by will, that, 
 though, in such case it must be in writing, its sufficiency is de- 
 terminable by the rules governing all valid trusts.'' And the 
 
 ' Wilson V. Perry, 29 W. Va. 169, I S. E. Rep. 302, where the decisions 
 in Virginia and this state are reviewed. 
 
 ' Wilson V. Perry, supra. 
 
 ' Wilson V. Perry, supra; Mong v. Roush, 29 W. Va. 119, 11 S. E. Rep. 
 906; Trustees Gen. Assem. Presbt. Church v. Guthrie, supra; P. Episcopal 
 E. Society v. Churchman, supra; University v. Tucker, 31 W. Va. 621, 8 
 S. E. Rep. 410. 
 
 * Mong V. Roush, supra; Society v. Pendleton, 7 W. Va. 79. 
 
 5 Underh., Trusts (ist Am. ed.) 41. 
 
 « See also 2 Story, Eq. Jur., §? 973, 987. ''AnU, \ 553. 
 
TRUSTS AKD TRUSTEES. 753 
 
 same formalities in the execution of the will are required as for 
 a valid devise of land.^ 
 
 When the settlor has parted with the title to real or personal 
 property by a transfer thereof to the trustee, the object and purposes 
 of the trust being legal and definite, there is generally little room 
 left for dispute or Utigation. If the trust property consist of per- 
 sonalty, it should be delivered or transfered by the donor accom- 
 panied with the intention to create a trust,' though this need not 
 be in writing.' 
 
 If the trust relates to land of which the settlor already holds 
 the legal title, it must be proved by an agreement or contract in 
 writing, duly executed and deUvered.* Where the declaration is 
 neither by will nor transfer of title to a trustee, but by a retention 
 of the title by the settlor and declaring himself to be a trustee 
 for the intended beneficiary, he must employ such language and 
 such means as shows unequivocally an intention to declare a trust 
 in himself.* 
 
 In the well-considered case of Pittman v. Pittman,* the doc- 
 trine is announced that a simple voluntary declaration in writing 
 not under seal without a consideration by the owner in fee of 
 land, that he holds it in trust for a third person, is not sufficient 
 
 ' Hopkins on Real Property, 263, 
 
 = Wadd V. Hazelton, 137 N. Y. 215, 21 L. R. A. 693, and elaborate note, 
 pp. 693-696; Anderson v. Thompson, 11 Leigh, 439; Beaver v. Beaver, 117 
 N. Y. 421, 6 L. R. A. 403; Fowler v. Bowery Savings Bank, 113 N. Y. 450, 4 
 L. R. A. 145, note; Otis v. Beckwith, 49 111. 121 ; Trough's Estate, 75 Pa. 
 St. 115; Taylor v. Staples, 8 R. I. 170; Cox v. Hill, 6 Md. 274; Hayes v. 
 Kershaw, i Sandf. Ch. 261; Bunn v. Winthrop, i Johns. Ch. 334, i N. Y. 
 Ch., L. ed. 162; Cunningham v. Davenport, 147 N. Y. 43, 32 I,. R. A. 473, 
 and note; Clark v. Clark, 108 Mass. 373; Saving Institution v. Hathorn, 88 
 Me. 122, 32 L. R. A. 377. 
 
 3 Moore v. Campbell (Ala.), 21 South. Rep. 353, Eipper v. Benner (Mich.), 
 71 N. W. Rep. 511; Cooper v. Thomason (Or.), 45 Pac. Rep. 296. 
 
 * McArthur v. Gordon, 12 L. R. A. 667, note, citing numerous cases; Mc- 
 Carlney V. Ridgway, 160 111. 129, 32 L. R. A. 555; Loring v. Hilbreth, 170 
 Mass. 328, 40 L. R. A. 127, i Beach, Mod. Eq. Jur., § 161; McCandless v. 
 Warner, 26 W. Va. 754; Lynn v. Lynn, 135 111. 18, 25 N. E. Rep. 634; Hand- 
 Ian V. Handlan, 42 W. Va. 309, 26 S. E. Rep, 179; Lucas v. Reed, (Minn.), 
 65 N. W. Rep. 91. 
 
 5 2 Pom., Eq. Jur., ? 459; Otis v. Beckwith, 49 111. 121; McCrary v. Clem- 
 ents, 95 Ga. 778, 22 S. E. Rep. 675. 
 
 <■ 107 N. C. IS9, ir L. R. A. 456. 
 
754 EQUITY PRINCIPI,ES. 
 
 to create a declaration of trust enforceable in equity.^ An exam- 
 ination of the authorities as to what shall constitute a valid toI- 
 untary declaration of an express trust of which the settlor is the 
 trustee, shows clearly that the method of declaration must be 
 such as to at least divest the settlor of the equitable title to the 
 trust subject." 
 
 "A declaration of trust as effectually passes the equitable title 
 of the fund to the cestui as a gift inter vivos passes the legal title 
 to the donee. The distinction between them is of a technical na- 
 ture. In a trust, the real title vests in the donee, but the legal 
 title, perhaps, carrying control of the property, may be placed 
 elsewhere, while in a gift both the real and legal title instantly 
 fall to the donee. It is not necessary, therefore, that he who 
 declares a trust should divest himself o£ the legal title if, per- 
 chance, he so does it as to transfer the real or equitable title to 
 the cestui, for then he creates an estate really no longer his own. 
 He may retain the legal title, giving him the control, but for the 
 benefit of the cestui, according to the terms of the trust. His 
 control becomes subject to the direction of courts of equity that 
 always supervise the administration of trusts. They are the 
 children of equity. They spring from it, and cannot survive with- 
 out its aid and control. The trustee is merely an agent to ad- 
 minister them, and nothing more.'" 
 
 § 563. As to the revocation of trusts — 
 
 A completed trust without reservation of power of revocation 
 can only be revoked by consent of all the beneficiaries. If a vol- 
 untary trust for the benefit, wholly or partly, of some person or 
 persons other than the grantor is once perfectly created and the 
 relation of trustee and cestui que trust is once established, it will 
 be enforced, although the settlor has destroyed the deed, or 
 has attempted to revoke it by making a second voluntary settle- 
 
 ' See McCartney v. Ridgway, supra; Jarrett v. Wallace, 98 Ga. 540, 25 S. 
 E. Rep. 577; Davis v. Stambaugh, 163 111. 557, 45 N. E). Rep. 170; Fitzgerald 
 V. Fitzgerald, (Mass.), 47 N. E. Rep. 431; Paddock v. Adams, 56 Ohio 
 St. 242, 46 N. E. Rep. 1068; Wentworth v. Shibbles, 89 Me. 167, 36 Atl. Rep. 
 108. 
 
 ' Bath Savings Institution v. Hathorn, 88 Me. 122, 32 1,. R. A. 377; Mc- 
 Arthur v. Gordon, supra; Lynn v. Lynn, supra; Loring v. Hildreth, supra. 
 
 3 Bath Savings Inst. v. Hathorn, supra. For the distinction between an 
 imperfect gift and a declaration of trust, see i Beach, Mod. Eq. Jur., 1 162. 
 
TRUSTS AND TRUSTEES. 755 
 
 ment of the same property or otherwise, or if the estate by some 
 accident afterwards becomes revested in the grantor. In all 
 these cases, the first perfectly created trust will be upheld and 
 the settlor be declared a trustee. A trust once created and ac- 
 cepted without reservation of power can only be revoked by the 
 consent of all parties in interest. If any of the parties are not 
 in being, or are not sui juris, it can not be revoked at all.' 
 
 In Ewing V. "Wilson, cited in the foot notes, the court speak- 
 ing through Elliott, Ch. J., in discussing the matter of a mere 
 voluntary trust, says: "The rule as it has long existed and as 
 afltaned by the courts of England and America is this: 'Where 
 there is a voluntary gift of the entire estate of the donor, a 
 reservation of the principal beneficial interest by him, and no 
 power of revocation, the instrument will be held ineffective as 
 against its author, unless it appears that there was an intention 
 to make the donation irrevocable.' " 
 
 After a full and able review of the authorities a careful writer 
 on equity says: "But where the deliberate intent to make an ir- 
 revocable gift does not appear, and where no motive for such a 
 gift is shown, the absence of a power of revocation is prima fade 
 evidence of a mistake. The rule is the same when the motive 
 has failed.'" 
 
 § 564. The cancellation of trusts — 
 
 While, as we have seen in the next preceding section, a duly 
 executed trust is irrevocable at the instance of the settlor, still it 
 may be canceled by a court of equity upon the ground of mistake, 
 fraud or undue influence, or total failure of the object for which 
 it was created.' So courts of chancery may set aside voluntary 
 trusts, without powers of revocation on the ground of improvi- 
 dence.* But the absence of such a power from the instrument 
 
 ' I Perry, Trusts, g 104; Ewing v. Jones, 130 Ind. 247, 15 L. R. A. 75, and 
 notes; Reidy v. Small, 154 Pa. St. 505, 20 1,. R. A. 362; Re Atkinson, 16 R. 
 I. 413, 2 L. R. A. 392, and note; Heiskell v. Powell, 23 W. Va. 717; Flesh- 
 man V. Hoylman, 27 W. Va. 728; Cox v. Cox, (Va.), 27 S. E. Rep. 834; 
 Ewing. V. Wilson. 132 Ind. 223, 19 L. R. A. 767, and notes; Underh., Trusts, 
 97, and note. 
 
 ' Bispham, Eq. 107, and note. 
 
 See UnderhiU on Trusts, 99 and 100, and the cases cited by the author. 
 
 ' Underh., Trusts, 99. 
 
 < Underh.. Trusts, loi, 102, citing numerous cases. 
 
756 EQUITY PRINCIPI,ES. 
 
 of the trust will not itself justify a court of chancery in setting 
 aside the instrument.^ A trust will be terminated or canceled 
 when the very object or purpose for which the trust was created 
 has ceased to exist. '^ Thus, a trust to enable a widow to support 
 her children fails upon her re-marriage.' But a trust ought not 
 to cease or be terminated until all of its objects and ultimate 
 purposes have been accomplished. 
 
 § 565. Trust estates are subject to the debts of the bene- 
 ficiaries — 
 Our statute provides that "estates of every kind, holden or pos- 
 sessed in trust, shall be subject to debts and charges of the persons 
 to whose use or to whose benefit they are holden or possessed, as 
 they would be if those persons owned a like interest in the 
 things holden or possessed, as in the uses or trusts thereof."* 
 This provision of our Code simply burdens a plain trust estate 
 with the debt of the cestui que trust. It in no wise prevents the 
 creation of a trust which, by its own terms and conditions, shal) 
 not be subject to debts.* 
 
 § 566. The rights and pov7ers of the beneficiary with 
 reference to the trust fund — 
 
 The beneficiary in a simple or mere passive trust, as we have 
 already seen," is entitled to have the legal estate vested in him or 
 conveyed as he may direct.' So where one person has the en- 
 tire beneficial interest, both in the income of property held by 
 the trustees for his benefit and in the property itself, and there 
 is no limitation over of the estate in any contingency to any 
 other person, no discretion given to the trustees, and no pro- 
 vision that the income or estate be inalienable by the cestui que 
 trust, or attachable by his creditors, he is entitled to a decree 
 terminating the trust.' 
 
 • Idem, 102, and cases cited. » Underh., Trusts, 98. 
 
 • Idem, note, citing Fox v. Storrs, 75 Ala. 265. See Idem, 98, 99, and ex- 
 tended note. ' 
 
 • Code, chap. 71, sec. 16. 
 
 5 Day V. Slaughter, 87 Va. 758, 13 L. R. A. 212, and note; Roberts v. 
 Stevens, 84 Me. 325, 17 L. R. A. 266, and note; I^igh v. Harrison, 69 
 Miss. 923, 18 L. R. A. 49; Wales v. Bowdish, 61 Vt. 23, 4 L. R. A. 819. 
 
 ' Ante, ? 552. ' Underh., Trusts, 368, and notes and illustrations. 
 
 » Sears v. Choate, 146 Mass. 395, 15 N. E. Rep. 786. 
 
TRUSTS AND TRUSTEES. 757 
 
 In the absence of a restriction in the deed of settlement, the 
 estate of a cestui que trust may be conveyed,' or in case of a life 
 estate, the income may be assigned,* or if the trust estate is de- 
 terminable upon a contingency, it may be transferred or assigned 
 subject to the contingency.' 
 
 "A trust may be so created that no interest vests in the bene- 
 ficiary, as where it is limited to the support and maintenance of 
 the beneficiary, and he is prohibited from alienation or anticipa- 
 tion. So where the income is to be paid over, only in the dis- 
 cretion of the trustee, or where it can only be applied for a spe- 
 cial use, such as education or support. In all such cases the 
 purpose of the trust would obviously be defeated if the benefi- 
 ciary could assign or alienate. But wherever the absolute equita- 
 ble interest is in the cestui que trust, and there is no prohibition 
 upon the power of alienation, the incidents of ownership attach, 
 and such interest is assignable or alienable."* 
 
 The beneficiary's control of the trust estate and his power of 
 ownership over it, as gathered from the decisions, is only limited 
 by the instrument of settlement.^ Under a trust deed giving to 
 a wife the rents and profits of the estate during her life, with 
 remainder to her son, the burden is upon the trustee to show that 
 a use of the corpus of the estate, during the life of the mother, 
 is plainly a judicious use thereof, such as the court will sanction.® 
 
 Where, from intemperance or other cause, the trustee be- 
 comes incompetent to act, the cestui que trust may have the trust 
 executed by the court of chancery through its commissioner.' 
 
 § 567. The statute of limitations as to trusts — 
 
 It is a well-settled principle of equity, that time does not com- 
 mence to run against a suit to enforce an express trust till the 
 trustee, by word or act, denies the trust, and the beneficiary has 
 notice of the denial.* But those trusts which arise by operation 
 
 • Underh., Trusts, 375, and note. ' Idem. 
 
 3 Idem, 375. 376. ■• ^dem, 376, note. 
 
 s In addition to the authorities already cited under this section, see the 
 following: Caldwell v. Boyd, 109 Ind. 447, 9 N. E. Rep. 912; Roberts v. Ste- 
 vens, supra; Sedgwick v. Taylor, 84 Va. 820, 6 S. E. Rep. 226. 
 
 « Sedgwick v. Taylor, supra. 
 
 ' Payne v. Morris (not reported in Va. Reps.), 5 S. E. Rep. 568; Rogers 
 V. Rogers, iii N. Y. 228, 18 N. E. Rep. 636. 
 
 * Nease v. Capehart, 8 W. Va. 95; Jones v. Lemon, 26 W. Va. 629; Spots- 
 wood V. Dandridge, 4 H. & M. 139; Lamar v. Hale, 79 Va. 147; Turner v. 
 
758 EQUITY principi.es. 
 
 of law, as all constructive trusts, are within the operation of the 
 statute of limitations.^ Thus money deposited by one person 
 with another to be paid to a third party, and not paid, does not 
 create a trust cognizable only in equity, not subject to the statute 
 of limitations, but is only a legal demand, and subject to the 
 statute.* 
 
 § 568. The trustee, his appointment and removal — 
 
 No one is bound to accept the office of trustee, which is usu- 
 ally created by the instrument of settlement, but both the office 
 and the estate may be disclaimed before acceptance or by conduct 
 tantamount to a disclaimer.' 
 
 A person may accept the office of trustee expressly; or he may 
 do so constructively by doing such acts as are only referable to 
 the character of trustee or executor; or he may do so by long 
 acquiescence.* 
 
 Equity will not permit a trust to fail for want of a trustee, so 
 that if the settlement has provided none, or the trustee has died 
 or declined the trust, equity will supply one bj- appointment.' 
 
 A court of equity will not remove a trustee, unless his retention 
 will operate to the detriment and injury of the beneficiaries or 
 the subject of the trust and its purposes.* 
 
 Any person not laboring under legal disabilities may act as 
 trustee;' and a corporation may be a trustee in any matter within 
 the proper scope of its powers.* 
 
 Campbell, 3 Gratt. 77; Reynolds v. Sumner, 126 III. 58, i L. R. A. 327, and 
 note; Key v. Hughes, 32 W. Va. 184, 9 S. E. Rep. 77; Woods v. Stephen- 
 son, 43 W. Va. 149, 27 S. E. Rep. 309. 
 
 ' Saum V. Coffelt, 79 Va. 510; Sheppard v. Turpin, 3 Gratt. 373; Reynolds v. 
 Sumner, supra; Woods v. Stevenson, 43 W. Va. 149, 27 S. E. Rep. 307; 
 Gapen v. Gapen, 41 W. Va. 427, 23 S. E. Rep. 579; Thompson v. Whitaker 
 Iron Co., 41 W. Va. 581, 23 S. E. Rep. 795; Vance v. Kirk, 29 W. Va. 353; 
 Spidell V. Henrici, 120 U. S. 377;2 Story's Eq.Jur., g 1284a; Beckford v. Wade, 
 17 Ves. Jr. 87. 
 
 ' Burbridge v. Sadler, 46 W. Va. 000, 32 S. E. Rep. 1028. 
 
 ' Underh., Trusts, 190, and American notes. < Idem, 193. 
 
 '' Dunscomb v. Dunscomb, 2 H. & M. 11; Strayer v. I/Ong, 83 Va. 715, 3 
 S. E. Rep. 372; Regan v. West, 115 111. 603, 4 N. E. Rep. 365; Skinner v. 
 Harrison Twp., 116 Ind. 139, 2 L. R. A. 137; Hoeffer v. Clogan, 171 111. 462, 
 40 L. R. A. 730; Underh., Trusts, 398, and note. 
 
 ' Moorman v. Crockett, 90 Va. 185, 17 S. E. Rep. 875. 
 
 ' I Beach, Mod. Eq. Jur., J 236. * Idem, I 235. 
 
TRUSTS AND TRUSTEES. 759 
 
 § 569. The title or estate which the trustee takes in the 
 trust property — 
 
 It is a well-settled rule that the estate which the trustee takes 
 in the trust-subject, is commensurate with the powers conferred 
 and duties imposed upon him.' He takes precisely such an es- 
 tate in quantity and duration, and no more, as is required to feed 
 the lawful purposes of the trust.'' And where it is the manifest 
 intent of the grantor to convey a fee, or where the duties of the 
 trustee and the necessities of the trust require that he have the 
 fee, the trustee will be invested with the fee, notwithstanding the 
 absence of words of inheritance from the devise or conveyance to 
 him.' So trustees take the legal title by implication where they 
 are required to hold it for a long period in order to pay specific 
 legacies, including annuities to a large number of persons for 
 life, and their duties require them to keep the estate, real and 
 personal, so invested as to be not only safe but productive.* 
 
 § 570. The powers and duties of the trustee as to the trust 
 property — 
 
 The general rule is that a trustee's authority over the trust 
 property, is defined and limited by the instrument creating the 
 trust, and that he should be guided strictly by its provisions.' 
 "In addition to the power expressly given to him by the settle- 
 ment and subject to any restrictions contained therein, and to 
 the provisions of any statute requiring the consent of the court 
 to any act, a trustee may, without application to the court, do 
 such of the following acts as the court would sanction if applied 
 to, viz.: 
 
 "a. Acts which are reasonable and proper for the realization, 
 protection or benefit of the trust property; and 
 
 "b. Acts which are reasonable and proper for the protection, 
 safety, support or reputation of a beneficiary who is incapable of 
 
 ' Camey v. Kain, 40 W. Va. 758, 23 S. E. Rep. 650; Norvell v. Hedrick, 
 21 W. Va. 523. 
 
 • I Beach, Mod. Eq. Jur., I 240. 
 
 3 I Perry, Tr., ? 815; Locke v. Barbour, 62 Ind. 585; North v. Philbrook, 
 34 Me. 537; Neilson v. Lagow, 53 U. S. 12 How. 106, 13 L. ed. 912; Cleve- 
 land V. Hallett, 6 Cush. 403. 
 
 * Hale V. Hale, 146 111. 227, 20 L. R. A. 247; Tobias v. Ketchum, 32 N. Y. 
 319; Deering v. Adams, 37 Me. 264; Lindley v. O'Reilly, 50 N. J. L. 636. 
 
 5 Atkinson v. Beckett, 34 W. Va. 584, 12 S. E. Rep. 717. 
 
760 KQUITY PRINCIPI<BS. 
 
 taking care of himself. Provided, that such acts do not benefit 
 one beneficiary at the expense of another, and do not interfere 
 with any legal beneficial interest." * 
 
 But a trustee cannot improve his cestui que trust out of the 
 estate, nor can he ordinarily charge the corpus of real estate 
 with improvements. But where he makes improvements in 
 good faith, and enhances thereby the value of the property, and 
 increases the rents thereof, to the extent of such enhancement 
 and increases, he should be reimbursed at least out of such in- 
 creased rents.' 
 
 Where a trustee is clothed with discretionary powers, their ex- 
 ercise will not be controlled by the courts as long as the trustee 
 acts in good faith.' But when the trustee, in dealing with the 
 trust estate, transcends his powers which he expressly or im- 
 pliedly has, his acts will be void.* 
 
 A trustee has a right to ask the instructions of the court as to 
 his present duties, but not as to what may be his duty in future 
 contingencies.^ 
 
 The general duties of the trustee are to acquaint himself as 
 soon as possible with the nature and circumstances of the trust 
 property, to obtain, where necessary, a transfer thereof to him- 
 self, and, subject to the provisions of the settlement, get in all 
 trust money invested on insufficient or hazardous security, fulfill 
 the purposes of the trust, acting impartially in the execution 
 thereof, so as not to confer an advantage on one beneficiary at 
 the expense of another, and carefully look after, improve and 
 preserve the trust estate.' 
 
 § 571. The care and diligence required of trustees in the 
 management of the trust property — 
 The just and true rule, as laid down by the more modem au- 
 thorities, and which has the support of reason as well as the 
 weight of the decisions, is that the trustee is bound to employ 
 
 " Underh., Trusts, 336, 337, and the American notes. 
 
 • Dickel V. Smith, 42 W. Va. 126, 24 S. E. Rep. 564, in the course of the 
 o^nion of the court. 
 
 ' Underh., Trusts, 339, and American notes. See also Carney v. Cain, 40 
 W. Va. 758, 23 S. E. Rep. 650. See ante, I 174. 
 
 * Sebom v. Beckwith, 30 W. Va. 774, 5 S. E. Rep. 450. 
 5 BuUard v. Chandler, 149 Mass. 532, 5 I,. R. A. 104. 
 
 « Underh., Trusts, 218-253; Rush v. Steel, 93 Va. 526, 25 S. E. Rep. 604. 
 
TRUSTS AND TRUSTBES. 761 
 
 such diligence and such prudence in the care and management of 
 the trust as, in general, prudent men of discretion and intelli- 
 gence in such matters employ in their own like affairs.^ 
 
 The measure of a trustee's care is tersely defined, and in strict 
 line with the authorities, in Douglass v. Stephenson,* wherein 
 the court of appeals of Virginia holds: "The inquiry in every 
 case where a fiduciary is called to account and liability is sought 
 to be fixed upon him is, did he act, in the particular transaction 
 which is questioned, within the scope of his powers, with good 
 faith and ordinary prudence? If he did so act, he is not 
 responsible for the consequences of his act, even though it 
 result unexpectedly in the loss of the trust subject, or any part 
 of it."» 
 
 § 572. The investment of trust funds by the trustee— 
 
 The first duty of the trustee, in making investment of the 
 trust funds, is to follow the directions of the settlement, where 
 any are given.* The loan or investment must be upon sufficient 
 security, and a loan without security would be treated as a 
 breach of trust, a violation of duty.' And the trustee must 
 see that the security is forthcoming upon parting with the 
 money.* 
 
 The rule, in general terms, as to the investment of the trust 
 fund, requires the trustee to act in good faith and sound dis- 
 cretion, observing how men of prudence and intelligence manage 
 their own affairs, not in regard to speculation, but in regard to 
 the x)ennanent disposition of the fund, considering the probable 
 income as well as the probable safety of the capital to be in- 
 vested.'' 
 
 ' I Beach, Mod. Eq. Jur., § 243; Underh., Trusts, 253, 254, and the Amer- 
 ican notes; Watkins v. Stewart, 78 Va. 114; Lovett v. Thomas, 81 Va. 245; 
 McArthur v. Gordon, 126 N. Y. 597, 12 L. R. A. 667; Reynolds v. Petty- 
 john, 79 Va. 327; Davis v. Harman, 21 Gratt. 200; Key v. Hughes, 32 W. Va. 
 184, 9 S. E. Rep. 77. 
 
 = 75 Va. 747. ' See ante, ? 152. 
 
 ■• Clarbome v. Holland, S& Va. 1046, 14 S. E. Rep. 915; Key v. Hughes, 32 
 W. Va. 184, 9 S. E. Rep. 77; Cogbill v. Boyd, 77 Va. 450. 
 
 5 Dickinson's Appeal, 152 Mass. 185, 9 L. R. A. 279-281, and notes; Nobles 
 V. Hogg, 36 S. C. 322, 15 S. E. Rep. 361. 
 
 « Cogbill V. Boyd, 77 Va. 450. 
 
 7 Harvard College v. Amory, 9 Pick. 446, 461; Re Hunt, 141 Mass. 515, 6 
 N. E. Rep. 554- See i Beach, Mod. Eq. Jur., ? 263; Underh., Trusts, 268-290. 
 
762 EQUITY PRINCIPLES. 
 
 The conditions under which a trustee was authorized to invest 
 in Confederate securities, are announced by our court in Knight 
 V. Watts,^ wherein the court holds that (a) the money must be 
 in the hands of the fiduciary; (3) it must have been received in 
 the due exercise of his trust; {c) and for some cause he must 
 have been unable to pay it out to the party entitled to it. If in 
 any case all these conditions did not exist, the trustee is responsi- 
 ble for the money. 
 
 § 573> 'When a purchaser from the trustee must see to 
 the application of the trust funds — 
 
 The determination of the question whether a purchaser is 
 bound to see to the application of the purchase-money must be 
 governed by the state of things at the time the deed is made, 
 and depends entirely upon the wording of the deed, and not on 
 the state of facts which may exist when the sale is made.' 
 When an interval must or may properly elapse between the sale 
 and the payment out, of the purchase-money, the purchaser is 
 not bound to see to its application.^ Thus, if a deed convey real 
 and personal property to a trustee upon trust to sell the property 
 for cash or on credit at any time he thinks proper, and to pay 
 over the proceeds to an infant when he attains the age of tweiity- 
 one, whether the property be sold before or after the infant at- 
 tains his majority, the purchaser is not bound to see to the appli- 
 cation of the purchase-money.* 
 
 A further rule is laid down by the court of appeals of Virginia, 
 that whenever the trust is of a defined and limited nature, the 
 purchaser must himself see that the purchase-money is applied 
 to the proper discharge of the trust; but whenever the trust is 
 general and of an uncertain nature, he need not see to it.* The 
 Virginia court of appeals, in the case of Hughes v. Tabb, cited 
 in the foot-note, holds that "even when the object of the trust 
 is defined, but the purchase-money is to be re-invested upon 
 trusts requiring time and discretion, the purchaser is not bound 
 to see to the application thereof." 
 
 If the trust is for the payment of debts generally, the pur- 
 chaser is not bound to see to the application of the purchase- 
 
 » 26 W. Va. 175, 176, syl. 4. » Woodwine v. Woodrum, 19 W. Va. 67. 
 
 ' Idem. * Idem. s Hughes v. Tabb, 78 Va. 313. 
 
TRUSTS AND TRUSTBBS. 763 
 
 money/ But whatever be the duty of the purchaser in any 
 case, he is at all events liable for the proper application of the 
 purchase-money when he is aware at the time of payment of the 
 intended misapplication of the funds, or is a participant in the 
 breach of trust, or is chargeable with knowledge of facts suffi- 
 cient to import notice of the breach of trust." 
 
 § 574. Following the trust property — 
 
 Whenever trust property of any kind has been wrongfully con- 
 verted into another species of property, or has improperly passed 
 beyond the control and possession of the trustee, if its identity 
 can be traced, it will be held, in its new form, Uable to the 
 rights of the cestui que trust. So long as it can be identified, 
 either as the original property of the cestui que trust, or as the 
 product of it, equity will follow it; and the right of reclamation 
 attaches to it until detached by the superior equity of a bona fide 
 purchaser for valuable consideration without notice. The sub- 
 stitute for the original thing follows the nature of the thing itself, 
 so long as it can be ascertained to be such.' 
 
 § 575- Remedies with reference to the unauthorized dis- 
 posal or transfer of trust property — 
 
 When a trustee misapplies a trust fund by paying it to another 
 who, he ought to know, is not entitled to it, and such other' 
 party receives such money knowing that he is not entitled to it 
 by reason of its being paid to the wrong person, the cestui que 
 trust may bring his suit in equity against the trustee alone, to 
 compel him to account for the amount of the fund so by him 
 misapplied; or he may, if he so elect, bring suit against the trus- 
 tee and the person improperly receiving the fund, to compel both 
 of them to account therefor.* 
 
 In such case, the decree should be first against'the person who 
 
 ' Underh., Trusts, 359, and American notes. ' Idem. 
 
 3 Marshall v. Hall, 42 W. Va. 641, 26 S. E. Rep. 300, opinion of Dent, J., 
 quoting from Thompson's Appeal, 22 Pa. St. 16; \\^ebb v. Bailey, 41 W. Va. 
 463, 23 S. E. Rep. 644; Riehl v. Evansville Foundry Ass'n, 104 Ind. 70, 3 N. 
 E. Rep. 633; Indiana, I. & I. R. Co. v. Swannell, 157 111. 616, 30 L. R. A. 
 290; Little V. Chadwick, 151 Mass. 109, 7 L. R. A. 570, and note; Edwards v. 
 Culberson, iii N. C. 342, 18 L. R. A. 204; Eowler v. Bowery Savings Bank, 
 113 N. Y. '450, 4 L. R. A. 148; I Beach, Mod. Eq. Jur., § 281. 
 
 4 Vance v. Kirk, 29 W. Va. 344, i S. E. Rep. 717; Thomas v. Linn, 40 W. 
 Va. 122, 20 S. E. Rep. 878; Graff v. Castlemati, 5 Rand. 195. 
 
764 EQUITY PRINCIPLES. 
 
 has improperly received the trust fund, and, if it cannot be re- 
 funded by him, then there should be another decree against the 
 trustee, who should be regarded as the surety of the person who 
 has improperly received the trust money.' 
 
 We here observe that the contributors to c charitable fund can- 
 not call the trustee thereof to an account for his misappropria- 
 tion of it.' 
 
 § 576. The purchase of trust property by the trustee — 
 
 A person holding a fiduciary relation as already shown ' cannot 
 use the same for his own benefit to the disadvantage or detri- 
 ment of him toward whom he sustains such relation.* And 
 while this relation continues, the trustee cannot purchase the 
 trust property either of himself or the beneficiary, or at a public 
 trust or judicial sale, and if such purchase is made, it is voidable 
 at the option of the cestui que trust, although the fiduciary may 
 have given an adequate price for the property and gained no ad- 
 vantage from the purchase.' 
 
 § 577* "^^6 accounts and compensation of trustees — 
 
 Our law requires fiduciaries to make settlement annually of 
 their accounts in the manner pointed out by the statute;* and 
 inasmuch as a trustee is a fiduciary, he must settle his accounts 
 each year, under the penalty of a forfeiture of his commissions 
 upon his failure or omission to do so.' He cannot lawfully re- 
 sign his trusteeship until after a settlement of his accounts, 
 covering the entire period of his office.* 
 
 It is a general rule that in suits brought by or against trustees, 
 respecting the trust matters, costs will be adjudged as in other 
 cases. But when the trustees are compelled to pay such costs, 
 they will be allowed to them in their accounts, including proper 
 attorneys' fees, if the litigation was just and proper.' 
 
 ' Vance v. Kirk, supra. = Clarke v. Oliver, 91 Va. 421, 22 S. E. Rep. 175. 
 
 3 Ante, I 54. * Newcombe v. Brooks, 16 W. Va. 32. 
 
 5 Idem; Reilly v. Ogleby, 25 W. Va. 36; Feamster t. Feamster, 35 W. Va. 
 I, 13 S. E. Rep. 53; Harrison v. Manson, 95 Va. 593, 29 S. E. Rep. 420. See 
 Newcomb v. Brooks, i5 W. Va. 32, syls. 8-10. 
 
 ' Code, chap. 87, sees. 6 and 7. 
 
 7 Ward V. Funster, 86 Va. 359, 10 S. E. Rep. 415. 
 
 ' Cogbill V. Boyd, 77 Va. 450. 
 
 » Darby v. Gilligan, 37 W. Va. 59, 16 S. E. Rep. 507; Cochran v. Rich- 
 mond & A. R. Co.,- 91 Va. 339, 21 S. E. Rep. 664. 
 
TRUSTS AND TRUSTEES. 765 
 
 In the case of Darby v. Gilligan, cited in the foot-notes, the 
 court holds that in suits between the cestui que trust and the trus- 
 tees in relation to a trust fund, the general rule which guides, rather 
 than governs, a court of equity is that trustees shall have their 
 costs either out of the trust fund or from the cestui que trust, per- 
 sonally, who may be found to be in fault; and this rule applies 
 whether the trustees be plaintiffs or defendants. But a trustee- 
 defendant resisting the plaintiff's claim, and failing in his de- 
 fense, will not be permitted to charge against the fund money 
 expended in attorneys' fees, unless it appears that such defense 
 was reasonable and proper.' 
 
 In the settlement of the trustee's accounts, it is a general rule 
 that he will be charged with interest upon the trust funds, unless 
 he can show that they were necessarily kept in hand for the 
 purposes of the trust.' 
 
 The account of disbursements should be accompanied by proper 
 proof or vouchers, except where from the nature of the case such 
 proof could not reasonably be expected, as in the case of ex- 
 penses incurred in the course of the trustee's business — as for 
 postage of letters, the costs of law-suits and the like, wherein 
 the account should be allowed upon the oath of the trustee.' 
 
 The usual commissions allowed a trustee, except where other- 
 wise specially provided by law, is five per cent,* which should be 
 allowed for risk, trouble and such expenses as are incurred in 
 the ordinary course of the trustee's business with reference to 
 the trust; but when he is taken out of that course, upon the 
 subject of the trust, he should be allowed such additional com- 
 pensation as is reasonable.* 
 
 ' Darby v. Gilligan, supra. 
 
 ' Miller v. Beverleys, 4 H. & M. 415, 417; Opinion of Holt, J., in Darby 
 V. Gilligan, supra. 
 3 Miller v. Beverleys, supra. 
 
 ■> Idem; Whitehead v. Whitehead, 85 Va. 870, 9 S. E. Rep. 10. 
 5 Idem. 
 
766 EQUITY PRINCIPiSS. 
 
 CHAPTER LI. 
 AUXILIARY JURISDICTION. 
 
 BILLS OF DISCOVERY, 
 
 S ,578. Classification and definition of bills of discovery. 
 
 579. When a pure bill of discovery may be filed. 
 
 580. Against -whom and in what cases a bill of discovery may be filed. 
 
 581. What matters the defendant must disclose. 
 
 582. Bills of discovery in aid of actions at law. 
 
 583. Discovery and production of documentary evidence. 
 
 584. Bill of discovery may be filed, though the party may be compelled 
 
 to testify as a witness. 
 
 585. The essential allegations of a bill of discovery. 
 
 586. The answer to a bill of discovery. 
 
 587. The effect of an answer to a bill of discovery. 
 
 § 578. Classification and definition of bills of discovery — 
 The former parts of this treatise have been mainly devoted to 
 the consideration of those equitable doctrines and principles by 
 which a party's rights and duties are measured and determined 
 in the tribunal of equity. What follows herein will be devoted 
 to a consideration of that branch of equity jurisdiction which is 
 sometimes invoked as an aid to the due administration of these 
 rights, or an enforcement of these duties, or in aid of justice in 
 some other forum. 
 
 Under this division of the work may be placed bills of dis- 
 covery, bills to perpetuate testimony, bills de bene esse and bills of 
 interpleader. 
 
 Beginning with a bill of discovery, an examination of the au- 
 thorities will disclose that there are two kinds of this class of 
 bills of which equity has jurisdiction. They may be appropri- 
 ately denominated pure and mixed bills of discovery.^ The 
 former seeks no relief, but simply the discovery of facts, resting 
 in the knowledge of the defendant or the disclosure of deeds, 
 
 ' Wick V. Dawson, 42 W. Va. 43, 24 S. E. Rep. 587; Thompson v. Whit- 
 taker Iron Co., 41 W. Va. 574, 23 S. E. Rep. 795; Lyons v. Miller. 6 Gratt. 
 427; March v. Davison, 9 Paige, 580; Lane v. Stebbins, Id. 622; Atlantic Ins. 
 Co. V. Lunar, i Saudf. Ch. 91. 
 
B1I,I^ OP DISCOVERY. 767 
 
 Other writings or things in the possession, power or control of 
 the defendant, in order to maintain the right or title of the party 
 in some suit or proceeding in another court.^ 
 
 The mixed bill of discovery, as its name implies, is filed both 
 for relief and discovery.' 
 
 § 579' W'hen a pure bill of discovery may be filed— 
 
 The plaintiff in an action at law may file his bill of discovery 
 before he begins his action, to aid him in the preparation of his 
 contemplated suit, as well as to aid him in its prosecution after 
 action brought.' But a defendant to an action at law is not al- 
 lowed to maintain such a bill until after he has pleaded at law, 
 as it cannot be known until then what his defense thereto is.* 
 And such a bUl cannot be filed without some very strong reason 
 therefor after the action at law has been concluded.' 
 
 § 580. Against \vhom and in vrhat cases a bill of discov- 
 ery may be filed — 
 
 It is a general rule that a bill of discovery cannot be filed 
 against a person who has no interest in the litigation and who is 
 only a 'witness.* Nor can such a bill be maintained against in- 
 fants for the purpose of compelling a discovery, as they do not 
 answer on their own oath,^ but only by guardian ad litem;* and 
 this is so, whether they be plaintiffs or defendants.' And the 
 same rule applies to persons of unsound mind."" 
 
 The bill may be maintained for the purpose of ascertaining the 
 names of the persons against whom the plaintiff may bring suit, 
 although he does not allege that he has a cause of action against 
 them or that he intends to sue the persons who are defendants in 
 the proceedings for discovery." 
 
 - 2 Story, Eq. Jur., I 1483; 6 Enc. PI. & Pr. 781; Fetter on Equity, 318. For 
 an account of the origin of the jurisdiction as to bills of discovery, see 2 
 Beach, Mod. Eq. Jur., ? 855. 
 
 " See authorities cited in the first foot-note. 
 
 3 6 Enc. PI. & Pr. 732. < Idem. 
 
 5 ZoU & Dunsmore v. Campbell, 3 W. Va. 226. 
 
 « 2 Beach, Mod. Eq. Jur., ? 858; Detroit Copper and Brass Rolling Mills v. 
 Ledwidge, 162 111. 305, 44 N. E. Rep. 751. 
 
 1 I/Cggett V. Sellon, 3 Paige Ch. 84. * Idem. 
 
 9 2 Beach, Mod. Eq. Jur., ? 860; 6 Enc PI. & Pr. 768. '"Idem. 
 
 " Post V. T. C. & St. L. Co., 144 Mass. 341, 11 N. E. Rep. 540; 2 Beach, 
 Mod. Eq. Jur., ? 858. 
 
768 EQUITY PRINCIPI<ES. 
 
 It also lies to compel disclosure by a person having possession 
 of choses in action, which he claims as a gift causa mortis from 
 an intestate, so as to enable the personal representative to bring 
 suit to recover the same;^ and the distributees in such a case are 
 not necessary parties.^ 
 
 And a borrower may also exhibit such a bill against the lender 
 and compel a discovery on oath of the money really lent and the 
 interest or consideration of the same;' and, if a deed of trust has 
 been given to secure the payment of the debt, an injunction may 
 be awarded to prevent a sale thereunder during the pendency of 
 the suit.^ So, where assumpsit has been brought at law, and the 
 statute of limitations has been pleaded, the plaintiff may file a 
 bill of discovery, and thus call on the defendant to answer 
 whether he has not made a new promise within the period of 
 limitation, in order to use this matter on the trial of the action 
 at law in avoidance of the bar of the statute, and the defendant 
 must answer as to the new promise.' 
 
 If the discovery is sought from a corporation, its officers or 
 agents should be made parties to the bill, so that they may make 
 discovery on behalf of the corporation.* The officers thus made 
 parties to the bill should be those who are supposed to be per- 
 sonally cognizant of the facts wanted or called for in the bill.' 
 
 § 581. W^hat matters the defendant must disclose — 
 
 The rule is well established, that a defendant is not bound to 
 disclose or answer matters which will expose him to pains, pen- 
 alties or punishment, or to a criminal prosecution; and it is not 
 necessary that it should appear that the defendant will certainly 
 be exposed to peril by making the discovery sought; but it is 
 enough if it appear that by answering the interrogatories of the 
 bill he will thereby be probably subjected to dangers of this 
 character.' But the claim of exemption from making disclosure 
 on the ground that it would subject the defendant to a criminal 
 
 ' Smith V. Smith, 92 Va. 696, 24 S. E. Rep. 280. = Idem. 
 
 3 Hartman v. Evans, 38 W. Va. 669, 18 S. E. Rep. 810. ' Idem. 
 
 5 Baker v. Morris, 10 Leigh, 284. But per contra, see Lansing v. Barr, 2 
 Johns. Ch. 150. 
 « Teters v. W. Va. Cent. & P. Ry. Co., 35 W. Va. 433, 14 S. E. Rep. 146. 
 » Roanoke St. Ry. Co. v. Hicks (Va.), 32 S. E. Rep. 295. 
 ' Northwestern Bank v. Nelson, i Gratt. 108; Thompson v. Whitaker Iron 
 
BILLS OF DISCOVBRY. 769 
 
 prosecution, can not be sustained where the prosecution for the 
 offense is barred by the statute of limitations.' And a disclosure 
 of privileged communications cannot be required.' Nor will dis- 
 covery be compelled of matters not material to the issue at law 
 in a pure bill of discovery,' or relevant to the relief sought by 
 the bill where it seeks relief as well as discovery.* So the de- 
 fendant will not be made to answer questions which are imper- 
 tinent, oppressive or vexatious.^ But a defendant is not exempt 
 from answering matters which show acts of moral baseness com- 
 mitted by him,^ or which will fasten upon him the charge of 
 fraud or imposition; and though disclosures of this nature 
 may tend to cast great reproach on his conduct and character.'' 
 But the rule is well established that the plaintiff cannot call 
 upon the defendant to discover those matters which relate exclu- 
 sively to the defendant's case, or the evidence by which his 
 defense is to be made out.' 
 
 While there has been some conflict of opinion on the ques- 
 tion whether a bill of discovery will lie in aid of an action of 
 tort, it is now admitted that it will, by, what seems to be, the 
 better reason and weight of the authorities.' 
 
 Subject to the principles thus laid down, the defendant is re- 
 quired to discover anything which may tend in the least degree 
 to prove the plaintiff's case. The criterion of the materiality of 
 the answer is not whether the affirmative answer will prove the 
 case, but whether it will tend to prove it.'". 
 
 If the defendant objects to answering the bill and the ground 
 of objection appear on the face of the bill, the defendant may 
 
 Co., 41 W. Va. 574, 23 S. E. Rep. 795; March v. Davison, 9 Paige, 580; Tay- 
 lor V. Bruen, 2 Barb. Ch. 301. 
 
 " Manchester & Lawrence R. Co. v. Concord R. Co., 66 N. H. 000, 9 L. R. 
 A. 689; 2 Beach, Mod. Eq. Jur., § 871, citing the same case; 6 Enc. PI. & Pr. 
 746, citing numerous cases. 
 
 = 2 Beach, Mod. Eq. Jur., § 866-871; 6 Enc. PI. & Pr. 747; Parker v. Car- 
 ter, 4 Munf., 273; Stuyvesant v. Peckham, 3 Edw. Ch. 579; Crosby v. Berger, 
 II Paige, 377. 
 
 ^ 6 Enc. PI. & Pr. 740. • Idem. s Idem. ' Idem, 744. 
 
 ^ Idem. 
 
 ' Norfolk & W. R. Co. v. Postal Tel. Cable Co., 88 Va. 932, 14 S. E. Rep. 
 689; Cuyler v. Bogert, 3 Paige, 186. 
 
 9 6 Enc. PI. & Pr. 733, citing several cases. 
 
 >» 2 Beach, Mod. Eq. Jur., ? 857. 
 
 49 
 
77° EQUITY PRINCIPI^SS. 
 
 demur thereto; otherwise he must claim protection by plea or 
 answer, the averments of which, if traversed by replication, 
 must be proved.' 
 
 § 582. Bills of discovery in aid of actions at law — 
 
 To authorize a bill of discovery in aid of an action at law, the 
 bill must show such a case as will enable the plaintiff to recover 
 in the action;" and contain so much of the pleadings as will en- 
 able the court to determine whether the facts of which discovery 
 is sought are material.' But the bill need not show that the 
 plaintiff cannot prove his case without the evidence as to which 
 discovery is asked.* 
 
 Under the principle here announced, equity will not lend its 
 aid to compel a discovery to enable the plaintiff to prosecute an 
 action which is actually barred by the statute of limitations.' 
 
 § 583. Discovery and production of documentary evi- 
 dence — 
 
 As in the case of mere verbal testimony, it is not necssary to 
 show that the plaintiff will be unable to prove his case without 
 the documentary evidence sought by his bill, nor that he has a 
 property interest in the document, in order to give him a right 
 to its disclosure and production, provided he makes it to appear 
 that he is justly entitled thereto by way of evidence in a prepara- 
 tion and trial of his cause." And it is not necessary that it ap- 
 pear that the documents are absolutely necessary as evidence to 
 be used in the action at law, to obtain a discovery of them.' 
 
 According to this rule, discovery may be compelled of the record 
 book of the corporation containing its proceedings before and 
 after incorporation;' letters written by a defendant in an action 
 at law to the plaintiff therein, but which the former contend are 
 forgeries;' a written contract upon which a plaintiff in an action 
 
 ■ Northwestern Bank v. Nelson, i Gratt. 108; Thompson v. Whitaker Iron 
 Co., 41 W. Va. 574, 23 S. E. Rep. 795. 
 
 ' 2 Beach, Mod. Eq. Jur., ? 864. 3 /dem. 
 
 * Thompson v. Whittaker Iron Co., supra; Russell v. Dickeschied, 24 W. 
 Va. 61. 
 
 5 Roosevelt V. Mark, 6 Johns. Ch. 289; Belknap v. Gleason, 11 Conn. 162, 
 27 Am. Dec. 722. 
 
 ' Arnold v. Pavrtnxet Water Co., 18 R. I. 000, 19 X,. R. A. 602. ' Idem. 
 
 ^Idern. 9 Dock v. Dock, 180 Pa. St. 14, 36 Atl. Rep. 411. 
 
B1I,I^ OF DISCOVERY. 77! 
 
 at law bases an action for damages for the breach thereof against 
 the defendant who does not deny the contract, but of which the 
 plaintiff has retained no copy;i an original telegram delivered by 
 the plaintiff to the agents of the company, to be used by the 
 sender against the company as evidence in an action by the former 
 against the latter for damages.' 
 
 These cases will serve to illustrate the extent to which a court 
 of equity wiU go in affording relief by way of compelling a dis- 
 covery and production of documentary evidence. For other 
 cases see those cited in the foot-note hereto annexed.' 
 
 A party seeking a discovery, must specify with reasonable cer- 
 tainty the documents he desires.* But there can be no discovery 
 compelled of any writings of which discovery is sought unless 
 the adverse party admits in his answer that they are in his pos- 
 session or control,' but a manual control or possession thereof is 
 not necessary.* And it must also be Hkewise admitted that the 
 writings are material or relevant to the plaintiff's case.^ There- 
 fore, if the answer contains a denial of materiality, production 
 cannot be had.' 
 
 § 584. Bill of discovery may be filed, though the party 
 may be compelled to testify as a witness — 
 A party to an action at law needing a discovery from the op- 
 posite party may in a proper case file a bill of discovery against 
 such party and compel such discovery, notwithstanding the law 
 allows the plaintiff in the bill of review to call the defendant 
 thereto as a witness in the action at law, and may examine him 
 therein in relation to the matters as to which he seeks a discovery 
 in equity.' 
 
 ' Smith V. Seattle, L. S. & E. R. Co., 41 N. Y. S. R. 672, 16 N. Y. Snpp. 
 
 417. 
 
 =■ 6 Enc. PI. & Pr. 792, note. 
 
 ' Whittle & Co. V. Bannister, i Wash. 166, 168; Simons v. Simons, 33 
 Gratt. 451; Smith v. Smith, 92 Va. 696; Carter v. Hampton, 77 Va. 631. 
 
 - 2 Beach, Mod. Eq. Jur., ? 861. s 6 Enc. PI. & Pr. 782. */iiem. 
 
 ? Idem. « Idem, 782, 783. 
 
 9 Russell V. Dickeschied, 24 W. Va. 61; Thompson v. Whittaker Iron Co., 
 41 W. Va. 576, 23 S. E. Rep. 795; Keely v. Perkins, 124 Pa. St. 36, 2 L. R. 
 A. 223, note; Handley v. Heflin, 84 Ala. 600, 4 South. Rep. 725; Cargill v. 
 Konntze Bros., 24 L. R. A, note, 183-191. 
 
772 EQUITY PRINCIPLES. 
 
 § 585. The essential allegations of a bill of discovery — 
 
 In addition to what lias been mentioned in previous sections * 
 as to what should appear in a bill of discovery, we wHl here con- 
 sider more fully the essential averments of both classes of bills 
 of discovery distinguishing between a pure bill and that which 
 also seeks relief. 
 
 When we use the terms "mixed bill of discovery," we do not 
 refer to a bill in chancery proper praying relief on some well- 
 recognized ground of equity jurisdiction; but to that class of 
 bills which seeks relief in equity on the ground of discovery as 
 the essential foundation upon which the plaintiff comes into a 
 court of equity, and upon which the court is asked to take juris- 
 diction of the particular case, and the court having taken juris- 
 diction upon the ground of discovery, retains the case for all 
 purposes and grants all the relief to which the plaintiff is entitled 
 as an incident to the suit without remitting him to his action at 
 law.'' 
 
 The real distinction between a mixed bill of discovery and a 
 pure bill in equity, is that in the former, discovery is the essential 
 ground of jurisdiction and the relief merely incident thereto;' 
 while in the latter the relief sought is the essential ground of 
 jurisdiction and the discovery is merely incident thereto, as bills 
 for relief may always contain prayers for the discovery of facts 
 essential to the granting of the relief prayed for in the bill.* 
 
 In a pure bill of discovery, as we have already seen,' it is not 
 necessary that the bill should state that the plaintiff has no other 
 evidence, nor is it objectionable if the bill even shows that he 
 has other evidence;' but it is otherwise as to a bill for discovery 
 and relief on a demand not cognizable in equity, the only ground 
 of jurisdiction being the need of discovery. In such a case, the 
 bill must state that the discovery is indispensable for want of 
 
 ' Ante, U 582, 583. 
 
 = Whittle & Co. V. Bannister, i Wash. i65, 168; Pryor v. Adams, II Cal. 
 382; Chichester v. Vass, i Munf. 98, Duvals v. Ross, 2 Muuf. 290; Lyons v. 
 Miller 6 Gratt. 427; Childress v. Morris, 23 Gratt. 802; Thompson v. Whit- 
 aker Iron Co., 41 W. Va. 696, 23 S. E. Rep. 795. 
 
 3 See the cases referred to last above cited. 
 
 < Wick V. Dawson, 42 W. Va. 43, 24 S. E. Rep. 587; Shipman on Equity 
 Pleading, pp. 212, 218, and the numerous authorities there cited. 
 
 ! Ante, I 582. ' Thompson v. Whittaker Iron Co., supra. 
 
BII,I^ OF DISCOVERY. 773 
 
 Other evidence;! and if it appear from the bill or on proof that 
 the plaintiff has other adequate evidence, the bill will be dismissed 
 on demurrer or hearing.^ 
 
 In the draft of a bill of discovery of any sort, it is of prime 
 importance that the plaintiff show in his bill that he has an in- 
 terest in the subject-matter to which the discovery relates, sus- 
 ceptible and proper to be vindicated in some judicial tribunal,^ and 
 that such interest is a present subsisting one, not a probable future 
 or contingent one.* And it must Hkewise be shown that the de- 
 fendant has also an interest in the matter as to which discovery 
 is sought." And such a bill must set forth a case which will con- 
 stitute a just ground for a suit or a defense,* and the nature 
 thereof with reasonable certainty ^ that the discovery is material 
 with reference to the action at law, to the party seeking the dis- 
 covery," and how and in what manner it is material.' The bill 
 should state in particular the matters as to which the discovery is 
 sought, as the defendant can not be called upon to answer mere 
 vague and loose surmises. ^^ And if the plaintiff desires to avoid 
 the payment of costs, he should apply to the defendant in the 
 first instance to give him the information which he seeks, or to 
 admit the facts of which discovery is sought, and this should be 
 stated in the bill," and the prayer of the bill should be for a full 
 discovery as to the matters stated," and for process to compel the 
 defendant to appear and answer the bill." 
 
 § 586. The answer to a bill of discovery — 
 
 When a party files a bill of discovery, he is entitled to an an- 
 swer thereto," and the defendant may be compelled to answer, un- 
 less his answer would subject him to punishment or a penalty, or 
 
 • Thompson v. Whittaker Iron Co., supra; Duvals v. Ross, supra; Chil- 
 dress y. Morris, supra. 
 
 ' Thompson v. Whittaker Iron Co., supra. 
 
 3 Van Kleeck v. Reformed Dutch Church, 6 Paige, 6cm, 3 N. Y. Ch. Rep. 
 Law ed. 1118; Mclntyre v. Mancius, 16 Johns. Rep. 592, 6 L. ed. 253; Storj', 
 Eq. H., 2 318. 
 
 * Story, Eq. PI. 318. = 6 Enc. PI. & Pr. 766. 
 
 « Story, Eq. H. 319. ' Idem, 321. " Idem, 324a. 
 
 9 Idem. " Idem, I 325. '■ 6 Enc. PI. & Pr. 770. 
 
 " Idem. '^ Idem. 
 
 '< Le Roy V. Veeder, i John. Cas. 417, Law ed., Bk. i, p. 375; Le Roy v. 
 Servis, i Cai. Cas. i, Law ed., Bk. 2, p, 677, 
 
774 EQUITY PRINCIPI<BS. 
 
 render him infamous;^ or unless tlie bill seeks a discovery of 
 matters as to which the plaintiff is not legally entitled to a dis- 
 closure;' and the answer must make a full discovery as to all 
 matters properly prayed for in the bill, if within the knowledge 
 of the defendant.' And this right to a full discovery cannot be 
 defeated by the denial of the defendant that the evidence sought 
 will be of no assistance or advantage to the plaintiff.* If the de- 
 fendant would avoid the requirement of making full answer, he 
 must do so in the manner pointed out in a former section of this 
 work.' 
 
 And the defendant, in his answer to a bill of discovery, has a 
 right to state all the circumstances connected with the matter 
 about which the discovery is sought, as well that which makes 
 for him as that which makes against him.* 
 
 "A defendant cannot demur to part and answer to a part of a 
 bill of discovery; as the rule is well settled that, if he submits 
 to answer, he must answer fully. There is no rule, however, 
 preventing an answer from being accompanied by a plea or de- 
 murrer. " ' 
 
 § 587. The effect of an answer to a bill of discovery — 
 
 The answer to a pure bill of discovery when used on the trial 
 of the action at law is simply a matter of evidence, the whole of 
 which is to be read as the testimony of a witness in the cause, 
 including not only the admissions against the interest of the de- 
 fendant, but all statements made in his favor;' and though, the 
 answer is read in the action at law, it may be discredited in the 
 same manner as the testimony of a witness may be discredited.' 
 But the answer to a "mixed bill of discovery" stands upon a 
 different footing with reference to its effect as evidence, as its 
 statements cannot be contradicted by other evidence,^" since to 
 falsify the allegation of a necessity for a discovery would defeat 
 
 ' Mclntyre v. Mancius, 16 Johns. 592, Ivaw ed., Bk. 6, p. 253. 
 
 ' Shipman on Eq. Pr. 403, 404. 3 Beach, Mod. Eq. Jur., \ 857. 
 
 * 6 Enc. PI. & Pr. 775. s Mem, 2 583. 
 
 ' Chambers v. Warren, 13 III. 318; Pant v. Miller, 17 Gratt. 187. 
 
 ^ Puterbaugh, PI. & Pr. (Ch.), 3d ed., 334. 
 
 " Pant V. Miller, 17 Grat. 187; Lyons v. Miller, 6 Gratt. 427. 
 
 9 Lyons V. Miller, supra; Puterbaugh's Ch. PI. & Pr. (3d ed.) 335; Pant 
 V. Miller, supra. 
 
 ■° Pant V. Miller, supra; Thompson v. Clark, 81 Va. 422; Ward v. Comett, 
 91 Va. 676. 
 
BIW<S OF DISCOVERY. 775 
 
 the jurisdiction of the court whose aid the plaintiff has invoked/ 
 So that in a mixed bill of discovery the plaintiff is compelled to 
 permit the answer to stand as evidence though it be against 
 him,* while the plaintiff in a pure bill of discovery may or may 
 not use the defendant's answer on the trial of the action at law 
 with reference to which the discovery has been sought,' and it 
 does not preclude other evidence bearing on the issue.* 
 
 ' Thompson v. Clark, supra. 
 
 ' Fant V. Miller, supra; Thomson v. Clark, supra; Ward v. Comett, 
 supra: Smith v. Smith, 92 Va. 696. 
 
 ' Cox V. Cox, 2 Port. (Ala.) 533; Carson v. Flowers, 15 Miss. (7 Smed. & 
 M.)99. 
 
 « Cox V. Cox, supra; Carson v. Flowers, supra. 
 
776 EQUITY PRUJCIPtES. 
 
 CHAPTER LII. 
 BILLS TO PERPETUATE TESTIMONY. 
 
 i 588. The object of bills to perpetuate testimony. 
 
 589. The interest necessary to maintain a bill to perpetuate testimony. 
 
 590. What must appear in a bill to perpetuate testimony. 
 
 591. The statutory provision as to the perpetuation of testimony. 
 
 § 588. The object of bills to perpetuate testimony — 
 
 A bill to perpetuate testimony is used where there is reason to 
 fear that the evidence necessary to establish facts, which will 
 probably become the subject of controversy at a future period, 
 may become lost by death, or absence from the country, of a ma- 
 terial witness.^ 
 
 § 589. The interest necessary to maintain a bill to per- 
 petuate testimony — 
 
 Before a bill of this character can be maintained, it is indis- 
 pensable that it appear therein that the plaintiff has some inter- 
 est in the subject-matter which may be endangered if the testi- 
 mony in support of it be lost.' But any interest, whether present 
 or remote or contingent, and whether great or small, answers the 
 requirements of the law in this regard.' Still the interest must 
 be something more than a mere expectancy; it must be a positive 
 interest.* 
 
 § 590. W^hat must appear in a bill to perpetuate testi- 
 mony — 
 
 The bill must contain all the allegations necessary to give the 
 court jurisdiction;* and in order to do this, the bill must, in the 
 first place, state the subject-matter to which the evidence sought 
 to be preserved relates;' as where the evidence sought to be pre- 
 
 •Puterbaugh, Ch. PI. & Pr. 352; Story, Eq. PI., i 299, etc.; Fetter on 
 Equity, 322; 2 Beach, Mod. Eq. Jur., | 1008. 
 » Story, Eq. PI., ? 301. s 2 Beach, Mod. Eq. Jur., § 1008. 
 
 •• Puterbaugh, Ch. PI. & Pr. 353. s /detn. 
 
 • Idem; Story, Eq. PI. & Pr., | 300. 
 
BII,I^ TO PERPETUATE TESTIMONY. 777 
 
 served is a deed, the instrument should be properly described 
 and the names of the witnesses by whom it is to be proved set 
 forth,' and also the facts to which they will depose;^ and if the 
 bill seeks to perpetuate the evidence of witnesses to matters in 
 pais, the bill must specifically set out the facts and that the wit- 
 nesses can establish them.* It should also allege the plaintiff's 
 interest in the subject-matter, the character of which has already 
 been shown in the next preceding section, and the title or claim 
 of interest of the defendant,* and the ground of necessity for 
 perpetuating the evidence;' as that the facts sought to be pre- 
 served cannot be immediately inquired into in a court of law, or 
 that the sole right of action is in the other party, or that the 
 other party has imposed some impediment to their immediate in- 
 vestigation.* In the former case, the bill must allege the plain- 
 tiff's possession of the property, or right, without any disturb- 
 ance thereof by the other party, upon which an action at law 
 can be founded.'' And in the latter case, the bill must set out 
 the specific facts upon which the plaintiff puts his case, and that 
 the witnesses are old or infirm or in ill- health and not likely to 
 live;* or that he has no present right of action, as that his title 
 is in remainder or reversion.' 
 
 If the biU is framed on the ground that the evidence of a wit- 
 ness may be lost by his death or departure from the state, before 
 the case can be investigated in a court of law, the circumstances 
 showing the danger of the loss of the testimony should be set out 
 in an affidavit accompanying the bill, or in the bill itself append- 
 ing the affidavit thereto.'" 
 
 A distinctive important feature of the bill is its prayer. This 
 shotild be for leave to examine witnesses touching the matters 
 stated in the bill, to the end that their testimony may be pre- 
 served and perpetuated." It should also pray the proper process 
 but not for relief, as the latter would render it demurrable. '^ 
 
 §591. The statutory provision as to the perpetuation of 
 testimony — 
 Our statute provides that "a person desirous of perpetuating 
 
 . Idem. ' Smith v. Turner, 4 Ired. (N. C.) Eq. 433- 
 
 3 Puterbaugh, PI. & Pr. 363; Story, Eq. PI. & Pr., ? 300. 
 « Story, Eq. PI. & Pr., §? 301. 3o2. s Idem. « Idem, 303. 
 
 7 Idem; Puterbaugh, Ch. PI. & Pr. 354- ' Idem. » Idem. 
 
 " Puterbaugh, Ch. PI. & Pr. 354. " ^'=f^»»- " I'^^*"' 354, 355- 
 
778 KQUITY PRINCIPLES. 
 
 the testimony of witnesses to a matter, whether a suit be pend- 
 ing in relation thereto, or not, may file with a commissioner in 
 chancery of a court wherein, if there were a bill to perpetuate 
 the testimony, such bill might be filed, a petition stating such 
 matter, and what persons may be affected by the testimony. 
 Whereupon the commissioner shall appoint for proceeding on the 
 petition a time and place, whereof reasonable notice shall be 
 given to the persons who may be affected. If any of them be 
 an infant or insane person, the commissioner shall appoint a 
 guardian ad litem to attend on his behalf, who shall be a prac- 
 ticing attorney in the state. At such time and place the com- 
 missioner shall take in writing, the evidence of any witness ad- 
 duced in respect to said matter by the petitioner, or by the per- 
 son so affected. He may adjourn from to time, and shall return 
 a report of his proceedings, with the testimony taken by Mm to 
 the clerk's ofSce of the court by which he was appointed, and 
 such testimony shall have the same effect as if it had been taken 
 on a bill to perpetuate testimony. Such court may make such 
 order as to the costs as may seem to it right." ^ 
 
 " Code, chap. 130, sec. 39. This statute for the perpetuation of testimony 
 merely prescribes a new mode in which testimony may be perpetuated, and 
 does not change the form by suit in equity for the same purpose. Smith v. 
 Grosjean, 1 P. & H. 109. 
 
^IXXS DE BENB SSSB. 77g 
 
 CHAPTER LIII. 
 
 BILLS DE BENE ESSE. 
 
 I 592. Definition and nature of a bill de bene esse. 
 593. Who may maintain a bill de bene esse. 
 
 § 592. Definition and nature of a bill de bene esse— 
 
 A bill to take testimony de bene esse is a bill in equity which 
 is brought to take the testimony of witnesses to a fact material 
 to the prosecution of a suit at law which is actually commenced 
 where there is good cause to fear that the testimony may other- 
 wise be lost before the time of trial.' This bill is mainly con- 
 tradistinguished from a bill to perpetuate testimony in that the 
 latter Ues in those cases where no action is pending, while the 
 former can only be brought where the cause is already begun. 
 The principles governing both classes of bills are generally the 
 same.* 
 
 § 593* W^ho may maintain a bill de bene esse — 
 
 A bill de bene esse may be brought by any persons interested, 
 whether they be in or out of possession, in aid of the trial at 
 law, and whether they be plaintiffs or defendants.* 
 
 Care shotild be taken in the draft of the bill to allege all the 
 material facts necessary to show the plaintiff's right to the 
 remedy, whether it be the age of the witness, his infirmity, or 
 his being about to depart from the jurisdiction of the court, or 
 his being the only witness, and that a suit is then pending.* And 
 the bill should further state the circumstances which make it 
 probable that the evidence may be lost unless taken at once, 
 that it is material and give the name and residence of the wit- 
 
 ' 3 Enc. PI. & Pr. 329. 
 
 » Story, Eq. PI. & Pr., | 307; Shipman on Equity PI. 286; Snell, Pr. Eq. 
 
 5". 512- 
 3 Idem. * 3 Enc. PI. & Pr. 332; Story Eq. PL, § 307- 
 
 s Idem. 
 
78o BQUITY PRINCIPI,ES. 
 
 ness, verifying the bill by affidavit.' Biit the necessity for this 
 bill has been superseded by virtue of the provisions of our 
 statute, authorizing the taking of all depositions by notice in 
 any pending suit.* 
 
 * Idem. • Code, chap. 130, sees. 33, 36. 
 
BILI^ OF INTERPI,EADER. 781 
 
 CHAPTER LIV. 
 
 BILLS OF INTERPLEADER. 
 
 ? 594. Tlie definition and object of bills of interpleader. • 
 
 595. By whom a bill of interpleader may be filed. 
 
 . 596. When a bill of interpleader should be filed. 
 
 597. The essential allegations of a bill of interpleader. 
 
 598. The right and extent of interpleader under the statute. 
 
 § 594. The definition and object of bills of interpleader— 
 A bill of interpleader is only maintainable in equity where two 
 or more persons claim the same debt, duty or thing/ by different 
 or separate interests, and another person not knowing to which 
 of the claimants he ought of right to render the debt, duty or 
 thing in his possession or under his control, fearing that he may 
 suffer injury from these conflicting claimants, prays that they 
 may be required to interplead and state their several claims, so 
 that the court may adjudge to whom the same debt, duty or 
 other thing belongs.* 
 
 The object of a bill of interpleader is to protect a plaintiff 
 standing in the situation of an innocent stakeholder, and where 
 a recovery against him by one claimant of the fund might not 
 protect him against a recovery by another claimant of the same 
 fund.' 
 
 § 595- By whom a bill of interpleader may be filed — 
 
 No party can maintain a bill of interpleader unless he is in 
 possession of the goods or thing in controversy,* and have no in- 
 terest in the matter in controversy or any claim thereto.* Nor 
 must he be a wrongdoer as to either of the parties defendant to 
 the suit;* nor have done anything to forward the interest of one 
 as against the other, nor have taken an indemity from either 
 
 ■ Oil Run Petroleum Co. v. Gale, 6 W. Va. 525. 
 
 =■ Opinion of the court in Dickeschied v. Bank, 28 W. Va. at page 345; 11 
 Enc. PI. & Pr. 446, 447. 
 3 Hechmer v. Gilligan, 28 W. Va. 750. 
 
 •• Puterbaugh, Ch. PI. & Pr. 338. ' Idem; i Bart., Ch. Pr. 281. 
 
 • II Enc. PI. & Pr. 457- 
 
782 EQUITY PRINCIPLES. 
 
 of the contending parties,^ as tlie receipt of an indemnity de- 
 stroys tlie character of impartiality and entitles the other party 
 to a dismissal of the bill." 
 
 The plaintiff must be ignorant of the rights of the respective 
 parties claiming the fund or other thing in his hands, or at least 
 show that there is some doubt in point of fact to which claimant 
 the debt or duty belongs.' 
 
 If a corporation desires to file a bill of interpleader, it must be 
 done by the corporation itself , and not by one of its officers on its 
 behalf.* A sheriff may file a bill of interpleader where different 
 persons claim the same fund in his possession derived from an 
 execution that has gone into his hands.^ 
 
 The plaintiff must be guilty of no laches in the matter of filing 
 his bill, but must do so within a reasonable time after ascertain- 
 ing the double claim against the fund.' 
 
 § 596. When a bill of interpleader should be filed — 
 
 A bill of interpleader cannot be resorted to wheire the plaintiff 
 has a clear and unembarrassed remedy at law;' nor where the 
 plaintiff may have full relief by petition in another chancery suit 
 already pending against him in which all the claimants are 
 parties.' 
 
 It may be maintained where suits are threatened,' but not 
 after judgment at law on the claim in favor of one or both of the 
 claimants. ^^ Therefore, if an attaching creditor and an assignee 
 both recover judgments against a debtor of an absent defendant, 
 without objection on his part, although he had notice of the as- 
 signment before the judgment in the attachment suit, he cannot, 
 after the judgments are obtained, file a bill of interpleader 
 against them to require them to litigate their respective rights to 
 
 1 Enc. PI. & Pr. 458, 459. ' Idem, 459. 
 
 3 Shaw V. Coster, 8 Paige (N. Y. ) Ch. 339, Law. ed. Bk. 4, p. 452; Mo- 
 hawk & Hudson Railroad Co. v. Clute, 4 Paige (N. Y.) Ch. 384, Law ed. 
 Bk. 3, p. 482. 
 
 « Hechmer v. Gilligan, 28 W. Va. 752. 
 
 5 Nease v. Aetna Ins. Co., 32 W. Va. 283, 9 S. E. Rep. 233; Storrsv. Payne, 
 4 H. & M. 506. 
 
 « II Enc. PI. & Pr. 462. 
 
 ' Oil Run Petrolevua Co. v. Gale, 6 W. Va. 525; 11 Enc- PI. & Pr. 447. 
 
 8 Idem, 448, 449. 9 Puterbaugh, Ch. PI. & Pr. 337. 
 
 '» Hechmer v. Gilligan, 28 W. Va. 757; Puterbaugh, Ch. PI. & Pr. C3d ed.) 
 337. 
 
BII<I^ OF INTERPI^EADER. 783 
 
 the fund, but must pay both judgments.' Of two adverse claims, 
 one may be legal and the other equitable.' 
 
 § 597- The essential allegations of a bill of interpleader — 
 It is essential that a bill of interpleader allege the plaintiff's 
 possession of the funds, or other property, as to which there are 
 conflicting claims;" an offer to bring the same into court;* and 
 especially should this averment be made when an injunction is 
 prayed, to restrain proceedings at law by the claimants or either 
 of them.^ It should also be set forth that there are proper per- 
 sons in esse capable of interpleading and setting up opposite 
 claims,* stating distinctly the nature and character of these con- 
 flicting claims.^ It should admit, or at least not deny, title in 
 either of the claimants.* And the bill should show that the plain- 
 tiff is ignorant of the rights of the parties who are called upon to 
 interplead, or that there is some doubt, in point of law or fact, 
 to which claimant the debt or duty belongs, so that the plaintiff 
 cannot in safety to himself pay or discharge it to either.' 
 
 The bill should also aver a disclaimer on the part of the plain- 
 tiff of any personal interest in the fund or other property,'" and 
 this averment should be accompanied by a statement of the rights 
 of the plaintiff with reference to the fund, in such a way as to 
 negative any such interest on his part." 
 
 The bill should pray that the defendants be required to set forth 
 their several titles to the fund or other property, and to interplead 
 and settle and adjust their demands between themselves;" and if 
 the plaintiff shovdd desire an injunction, to restrain proceedings 
 at law, which is usually the case, the bill should contain a spe- 
 cial prayer for the process of injunction." 
 
 ■ Hazeltine and Walton v. Brickey, 16 Gratt. 116, and the decisions re- 
 ferred to in the opinion of I/ce, J. 
 
 • Puterbaugh, Ch. PI. &' Pr. 337, 338; Oil Run Petroleum Co. v. Gale, 6 
 W. Va. 525. 
 
 ' Stone V. Reed, 152 Mass. 179, 25 N. E. Rep. 49- 
 
 ♦Puterbaugh, Ch. PI. & Pr. 341; Mohawk and Hudson Railroad Co. v. 
 
 Clnte, 4 Paige Ch. 384, Law ed., Bk. 3, p. 482. 
 
 s Story, Eq. PI., \ 296. « Story, Eq. PL, I 295; 11 Enc. PL & Pr. 463- 
 
 ^ Story, Eq. PL, \l 292, 293. ' n Enc. PL & Pr. 465- 
 
 9 Mohawk and Hudson Raihoad Co. v. Clute, supra; Shaw v. Coster, 8 
 
 Paige, Ch. 339, Law ed., Bk. 4, p. 452- 
 
 * Story, Eq. PL, | 292; Shaw v. Coster, supra. 
 
 " II Enc. H. & Pr. 465, 466. "Idem. ^'Idem, 466, 467. 
 
784 EQUITY PRINCIPLES. 
 
 In the case of a bill of interpleader an af&davit is invariably 
 required of the plaintiff, that he does not collude with either of 
 the defendants;^ and if such a bill be filed by a company or cor- 
 poration, there should be appended to it, by the proper officer 
 thereof, an affidavit stating that, to the best of his knowledge and 
 belief, the company or corporation does not collude with the de- 
 fendants.' 
 
 § 598. The right and extent of interpleader under the 
 statute — 
 
 The right of interpleader existed at common law, but was re- 
 stricted to the action of detinue; and then only ^when it was 
 founded upon a joint bailment, privitj"^ of contract or upon a 
 finding.' To remedy this defect in the common law, it is pro- 
 vided by statute that, upon affidavit of a defendant in any action 
 that he claims no interest in the subject-matter of the suit, but 
 that some third party has a claim thereto, and that he does not 
 collude with such third party, but is ready to pay or dispose of 
 the subject-matter of the action as the court may direct, the 
 court may make an order requiring such third party to appear and 
 state the nature of his claim, and maintain or relinquish it, in 
 the meantime staying the proceedings in such action. If such 
 third party, on being served with a copy of such order, shall not 
 appear, the court may, on proof of the plaintiff's right, render 
 judgment for him, and declare such third party to be forever 
 barred of any claim in respect of the subject-matter, either 
 against the plaintiff, or the original defendant, or his personal 
 representative. 
 
 If such third party, on being so served, shall appear, the court 
 shall allow him to make himself defendant in the action, and, 
 either in said action or otherwise, cause such issue or issues to be 
 tried as it may prescribe, and may direct which party shall be 
 considered the plaintiff in the issue, and shall give judgment 
 upon the verdict rendered, or, if a jury be waived by the parties 
 interested, shall determine their claims in a summary way.* 
 
 ' Shaw V. Coster, supra; Story, Eq. PI., ? 297; Puterbaugh, Ch. PI & 
 Pr. 341. 
 
 ' II Enc. PI. & Pr. 467, 468; Story, Eq. PI., § 297; Hechman v. Gilligan, 
 28 W. Va., at p. 757, citing Bignold v. Audland, 11 Simons, 34 Eng. Ch. 
 R. 22. 
 
 ' Dickeschied v. Bank, supra. ' Code, chap. 107, sec. I. 
 
Bltl^ OF INTERPIvKADER. 785 
 
 "It will be perceived that this statute has greatly extended the 
 reach of the remedy of interpleader in courts of common law, by 
 extending its benefits to many cases of honest, but unavoidably 
 doubtful, litigation." ' 
 
 ' In the opinion of Woods, J., in Dickeschied v. Bank, 28 W. Va., in con- 
 struing this statute, at page 348. See, also. Miller v. Peck, 18 W. Va. 75. 
 
 The bUl of interpleader in equity is not superseded by the statutory remedy 
 afforded to a defendant in an action at law whereby he may obtain an order 
 substituting another claimant as defendant. 11 Enc. PI. & Pr. 479, citing 
 numerous cases. 
 
INDKX. 
 
 Abandonment — 
 
 As ground of divorce Sec. 491, pp. 652-655 
 
 Abatement — 
 
 Definition of, as to sales of real estate Sec. s p. 11 
 
 Cases wherein it is proper in sales of real estate Sec. 5, pp. 11-14 
 
 Right to, rests upon an express or implied warranty Sec. 5, p. 13 
 
 "When sale by the acre, and when in gross Sec. 6, pp. 14-16 
 
 In cases where fraud shown on part of vendor Sec. 7, pp. i6-i8 
 
 In cases of mistake in sales of real estate Sec. 8 p. 18 
 
 As to unliquidated damages in sale of land Sec. 9 p. 18 
 
 When all the purchase-money has been paid Sec. 10, pp. 19, 20 
 
 Evidence as to vendor's representations in cases of Sec. 11, pp. 20, 21 
 
 Extentof deficiency in quantity of land sold to authorize an.. Sec. 12, p. 21 
 When vendor may demand payment for excess of land beyond 
 
 quantity called for in deed Sec. 13, pp. 21, 22 
 
 Rule determining amount of Sec. 14, pp. 22, 23 
 
 Of legacies Sec. 116, p. 187 
 
 Abatement, Plea in — 
 
 In attachment suits Sec. 43, p. 75 
 
 In attachment suits must be tried by jury Sec. 43, p. 76 
 
 Accident — 
 
 Definition of Sec. 15, p. 24 
 
 Cases wherein equity will relieve against Sec. 15, pp. 24, 25 
 
 Ijimitations as to reUef against Sec. 15a, p. 25 
 
 When equity will not relieve against Sec. 15, p. 24 
 
 Account — 
 
 Where equity will afford relief in matters of Sec. 16, pp. 26, 27 
 
 Cases wherein equity will take jurisdiction in matters of.. Sec. 16, pp. 27-29 
 
 When equity will not take jurisdiction in matters of Sec. 16, p. 29 
 
 Matters of, as incident to suits in equity Sec. i6a, p. 29 
 
 The plea of stated Sec. i6b, p. 30 
 
 How defense of stated, made in equity Sec. i6b, p. 30 
 
 Method of settling, of fiduciary Sec. 153, pp. 243-246 
 
 Actions at law. (See Injtotctions.) 
 
 Injimctions to enjoin the prosecution of Sec. 273, pp. 381, 382 
 
 Grotmd upon which court will enjoin prosecution of Sec. 273, p. 381 
 
 As to injimctions to, without confession of judgment Sec. 274, p. 382 
 
 Injunctions to the action of ejectment, when issued Sec. 239, p. 352 
 
 Injunctions as to unconscientious proceeding at law .Sec. 330, p. 457 
 
 Adultery — 
 
 As ground of divorce Sec. 492, p. 655 
 
 (787) 
 
788 INDBX. 
 
 Advancement — 
 
 What constitutes an Sec. 213, p. 318 
 
 How and to whom chargeable Sec. 214, pp. 318, 319 
 
 Evidence to show the existence of an Sec. 215, pp. 319, 320 
 
 How far, may go in extinguishment of a legacy Sec. 116, p. 188 
 
 Affidavit— 
 
 In attachment Sec. 39, pp. 64-68 
 
 Can be no attachment issued without Sec. 39, pp. 64, 65 
 
 "What the, in attachment must state Sec. 39, p. 65 
 
 When, for attachment not suflScient Sec. 39, p. 65 
 
 By whom, in attachment may be made Sec. 39, p. 65 
 
 When, for attachment cannot be amended Sec. 39, pp. 65, 66 
 
 What errors in, for attachment may be corrected Sec. 39, p. 66 
 
 When supplemental, may be filed in attachment Sec. 39, p. 66 
 
 When, in attachment should show how defendant is a nonresident, 
 
 Sec. 39, p. 66 
 
 When material facts should be set out in, for an attachment . . Sec. 39, p. 66 
 What a sufficient statement in, of material facts in cases of attach- 
 ment Sec. 39, pp. 66, 67 
 
 As to setting out more than one ground for an attachment in the. . 
 
 , Sec. 39, pp. 67, 68 
 
 How the material facts in the, for attachment should be averred. . . 
 
 Sec. 39, p. 68 
 
 Agency — 
 
 Cases of, falling under cognizance of equity Sec. 17, p. 31 
 
 Who may act ^ agent Sec. 18, p. 32 
 
 Duty of agent toward principal Sec. 19, pp. 32, 33 
 
 Attorneys at law and their clients Sec. 20, pp. 33, 34 
 
 Alimony — 
 
 Origin and definition of Sec. 438, pp. 580, 581 
 
 When, will not be allowed , Sec. 439, p. 581 
 
 Allowance of, pendente lite Sec. 440, pp. 581-584 
 
 Allowance of, in discretion of court Sec. 440, p. 581 
 
 Amount of, in discretion of court Sec. 440, p. 582 
 
 To be prima facie case before asking for Sec. 440, p. 582 
 
 Time of allowance of, in discretion of court Sec. 440, p. 583 
 
 Allowance of, must be in wife's name Sec. 440, pp. 583, 584 
 
 When permanent, will be granted, and the amount thereof, 
 
 Sec. 441, pp. 584-586 
 
 Illustrative cases as to the amount of Sec. 442, pp. 586, 587 
 
 Decree in cases where allowed Sec. 443, pp. 587, 588 
 
 As a distinct subject of equity jurisdiction Sec. 444, pp. 589, 590 
 
 To the husband, not allowed Sec. 445, pp. 590-593 
 
 Annulment of marriage — 
 
 What is, and when decreed. Sec. 446, pp. 594-596 
 
 Jurisdiction to annul marriage Sec. 447, p. 596 
 
 The decree of annulment Sec. 448, pp. 596, 597 
 
 Suits to affirm marriages Sec. 449, p. 597 
 
INDBX. 789 
 
 Appearance — 
 
 Effect of personal, to suit Sec. 44, p. 77 
 
 Arbitration. (See Award. ) 
 
 Who may submit to Sec. 21, p. 35 
 
 Mode of submission to Sec. 22, pp. 35, 36 
 
 When submission to, must be in writing Sec. 22, p. 36 
 
 Submission to, general or special Sec. 22, p. 36 
 
 Submission to, under the statute Sec. 23, p. 36 
 
 Defenses under statutory submissions Sec. 23, p. 36 
 
 When attorney may submit client's case to Sec. 23, p. 37 
 
 All matters pertaining to submission should be presented to the 
 
 arbitrators Sec. 24, p. 37 
 
 Power of arbitrators under rule of court Sec. 25, pp. 37, 38 
 
 Time within which award must be made Sec. 26, p. 58 
 
 As to revoking submission to Sec. 27, pp. 38, 39 
 
 Submission to cannot affect right of court to take jurisdiction of 
 
 subject-matter of, when Sec. 27, pp, 38, 39 
 
 When agreement to arbitrate will be enforced Sec. 27, p. 39 
 
 No form to submit to, necessary Sec. 28, pp. 39, 40 
 
 The award, definition of Sec. 29, p. 40 
 
 Essentials as to validity of award Sec. 29, p. 40 
 
 Wlien award will be set aside Sec. 29, pp. 40, 41 
 
 When arbitrators may decide questions of law Sec. 29, pp. 40, 41 
 
 When award is final Sec. 29, p. 4X 
 
 When return of award into court should be made Sec. 30, p. 41 
 
 When and how award may be entered as the judgment of the court, 
 
 Sec. 30, p. 41 
 
 How an award may be objected to Sec. 30, p. 41 
 
 As to the sufficiency of an award Sec. 31, pp. 42, 43 
 
 As to the setting aside of an award Sec. 32, pp. 43, 44 
 
 Cases wherein awards have been set aside Sec. 33, pp. 45, 46 
 
 Cases wherein awards have not been set aside Sec. 33, pp. 46, 47 
 
 Right of fiduciary to submit matter to Sec. 34, pp. 47, 48 
 
 Arbitrator. (See Arbitration and Award. ) 
 
 All matters should be submitted to Sec. 24, p. 37 
 
 Power and authority of, under rule of court Sec. 25, pp. 37, 38 
 
 Fraud, corruption or misconduct on part of Sec. 32, p. 44 
 
 Assignment — 
 
 Of one's property as ground of attachment Sec. 38, pp. 60-62 
 
 Attachment — 
 
 Origin and history of equity jurisdiction Sec. 35, pp. 49-5^ 
 
 Derived from custom of London Sec. 35, p. 49 
 
 Requirements of law of, must be strictly observed.. Sees. 35, 39, pp. 49. 65 
 
 Does not belong to general equity jurisdiction Sec. 35, pp. 49. 5" 
 
 Extent of equity jurisdiction in Sec. 36, p. 52 
 
 When equity jurisdiction exclusive in Sec. 36, p. 52 
 
 Not necessary to show jurisdiction on face of bill in Sec. 37, p. 53 
 
 Of the different grounds for Sec. 38, pp. 53-64 
 
790 INDEX. 
 
 Attachment — Continued. 
 
 Nonresidence as a ground of Sec. 38, pp. 54-56 
 
 When a party not a nonresident Sec. 38, p. 54 
 
 Difference between domicil and residence Sec. 38, p. 54 
 
 What is nonresidence as to cases in Sec. 38, pp. 55, 56 
 
 Leaving state with intent to defraud creditors as ground of, 
 
 Sec. 38, pp. 56-58 
 
 The essentials as to maintenance of, on ground that defendant has 
 
 left state or about to do so Sec. 38, p. 56 
 
 Meaning of the words "about to leave" in cases of Sec. 38, p. 57 
 
 As to the intent to defraud in cases of Sec. 38, p. 58 
 
 As to concealment of the person as ground of Sec. 38, pp. 58, 59 
 
 What constitutes concealment in cases of Sec. 38, pp. 58, 59 
 
 The removal of property or the proceeds of it out of the state as a 
 
 ground of : Sec. 38, p. 59 
 
 The conversion of property into money or securities as ground 
 
 of . . .Sec. 38, pp. 59, 60 
 
 What constitutes "conversion" under the law of Sec. 38, pp. 59, 60 
 
 The assignment or disposal of property as a ground of... Sec. 38, pp. 60-62 
 
 As to evidence of intent to defraud Sec. 38, p. 60 
 
 Meaning of the words "assigned or disposed" under the law 
 
 of Sec. 38, p. 61 
 
 What not an assignment within meaning of law of Sec. 38, pp. 60, 61 
 
 What an assignment within meaning of law of Sec. 38, pp. 61, 62 
 
 Concealment of property or rights in action as ground of. 
 
 Sec. 38, pp. 62, 63 
 
 What is concealment of property in cases of Sec. 38, pp. 62, 63 
 
 The fraudulent contraction of the debt as ground of Sec. 38, pp. ^3, 64 
 
 As to what is a "fraudulent contraction" of the debt in cases of. 
 
 Sec. 38, pp. 63, 64 
 
 Mere insolvency as evidence under this ground of Sec. 38, pp. 63, 64 
 
 As to the affidavit in Sec. 39, pp. 64-68 
 
 As to the order and return thereof in Sec. 40, pp. 68-70 
 
 One or more orders of, may issue on same affidavit Sec. 40, p. 68 
 
 Orders of, must not exceed amount of claim sued on. . . .Sec. 40, pp. 68, 69 
 Must be sued out in action pending, or one about to be brought.Sec. 40, p. 69 
 
 To whom order of, may be directed. . , Sec. 40, p. 69 
 
 When order of, returnable , Sec. 40, p. 69 
 
 What officer's return or order of, should show Sec. 40, pp. 69, 70 
 
 Of the levy of an order of Sec. 41, pp. 70, 71. 
 
 Upon what order of, may be levied Sec. 41, pp. 70, 71 
 
 Of the garnishee in : Sec. 42, pp. 71-75 
 
 How party may be gamisheed Sec. 42, p. 71 
 
 When process of garnishment returnable Sec. 42, p. 71 
 
 Usual in equity to make garnishee party to suit Sec. 42, p. 71 
 
 How garnishee discloses his liability in equity Sec. 42, pp. 71, 72 
 
 Ganishee may make defense to suit Sec. 42, p. 72 
 
 When bill taken for confessed as to garnishee ■ Sec. 42, p. 72 
 
INDBX. ygj 
 
 An&chment— Continued. 
 
 ■ Process of garnishment creates no lien Sec 42 p 72 
 
 Effect of garnishment duly served .".'.".'.'.'."' Sec 42' p 72 
 
 Who may be made a garnishee ".■.■.■.■ .Sec.' 42, pp ' 72-74 
 
 Decree against garnishee, when may be entered Sec. 42 pp 74 75 
 
 Effect of payment of decree by the garnishee Sec 42 p' 75 
 
 As to the defense to an Sec. 43, PP- 75, 76 
 
 What defenses may be made to an Sec. 43, pp. 75, 76 
 
 Grounds of, only controvertible by plea in abatement Sec. 43, p. 76 
 
 How issue on plea in abatement is to be tried Sec. 43' p. 76 
 
 Of the decree to be rendered in Sec. 44, pp.'76-79 
 
 When can be no personal decree in Sec. 44 p. 77 
 
 When a personal decree may be entered in Sec. 44, p. 77 
 
 Attorney at law — 
 
 Relation of, to client Sec. 20 p. ■i-i 
 
 Good faith on the part of Sec. 20 p. -t-i 
 
 Cannot purchase client's claim, when Sec. 20, p. 33 
 
 Duty of, as to disclosures to client Sec. 20, p. 34 
 
 Duty of, to client generally Sec. 20, p. 34 
 
 Award. (See Arbitration. ) 
 
 Time within which an, must be made Sec. 26 p. -18 
 
 Waiver of time within which an, must be made Sec. 26, p. 38 
 
 When clerical error in, may be corrected Sec. 26, p. 38 
 
 When time in which to be made may be extended Sec. 26, p. 38 
 
 Definition of an Sec. 29, p. 40 
 
 Essentials of an Sec. 29, p. 40 
 
 The, must leave no matter open to controversy Sec. 29, p. 40 
 
 When, will or will not be set aside for mistake of law. ..Sec. 29, pp. 40, 41 
 
 When an, is final Sec. 29, p. 41 
 
 As to return of, into court Sec. 30, p. 41 
 
 Entry of, as judgment of court, and how Sec. 30, p. 41 
 
 Should be rule to show cause why the, should not be entered as 
 
 judgment of court Sec. 30, p. 41 
 
 When regarded as complete Sec. 30, p. 42 
 
 The signing of the Sec. 30, p. 42 
 
 Power of court over, when returned under a rule of court. .Sec, 30, p. 42 
 
 When, should be returned to court Sec. 30, p. 42 
 
 When, will be set aside for errors upon face of Sec. 31, p. 42 
 
 As to suit in equity to set aside an Sec. 31, p. 42 
 
 Presumption as to the validity of an Sec. 31, pp. 42, 43 
 
 Certainty required in an Sec. 31, p. 43 
 
 Need not be under seal Sec. 31, p. 43 
 
 Omission to act upon matter submitted to arbitration, effect of upon 
 
 the Sec. 31, p. 43 
 
 As to changing or altering the Sec. 31, p. 43 
 
 Grounds upon which an, may be set aside Sec. 32, p. 43 
 
 As to effect of error apparent upon face of Sec. 32, pp. 43, 44 
 
 What not part of Sec. 32, p. 44 
 
792 INDSX. 
 
 Award — Continued. 
 As to misconduct of arbitrators as ground for setting aside an . . Sec. 32, p. 44 
 As to misconduct of the parties as a ground for setting aside 
 
 an Sec. 32, p. 44 
 
 As to grounds for setting aside an, -which might have been urged in 
 
 court of law Sec. 32, p. 44 
 
 Illustrated cases of the sufficiency and insufficiency of grounds for 
 
 setting aside an Sec. 33, pp. 45-47 
 
 Bed and Board — 
 
 Divorce from Sec. 493, pp. 656, 657 
 
 Bill, The, in Equity— 
 Whether jurisdiction should be shown on face of, in attach- 
 ment Sec. 37, p. 53 
 
 When, may be taken for confessed as to garnishee Sec. 42, p. 72 
 
 As to allegation in, of mistake to be relieved from . .Sees. 49, 347, pp. 90, 468 
 What, must show in suits as to confusion of boundaries.. . .Sec. 62a, p. 105 
 What, should contain in suits to surcharge and falsify accounts of 
 
 fiduciaries Sec. 119, p. 198 
 
 Allegations of, to rescind contract on ground of fraud . .Sec. 177, pp. 273, 274 
 
 Allegations of, in suit to set aside a fraudulent conveyance 
 
 Sec. 186, pp. 286, 288 
 
 Allegations of, to obtain injunction against trespass 
 
 Sees. 240, 241, pp. 354-356 
 
 Allegations of, in suit for new trial Sec. 354, p. 477 
 
 Allegations of, in partition suit Sec. 377, pp. 510, 511 
 
 Allegations of, by surety to be relieved from contract of surety- 
 ship Sec. 394, p. 526 
 
 Averments of, in suit for specific performance of contract 
 
 Sec. 408, pp. 548, 549 
 
 In creditors' suit, what it should show on its face. . . .Sec. 454, pp. 605, 606 
 What, must show to cancel or rescind written instrument. . .Sec. 60, p. 100 
 
 In cases of lost instruments Sees. 302, 303, 304, pp. 422, 423 
 
 To contest a will Sec. 430, p. 573 
 
 Averment of, in creditors' suit Sec. 454, pp. 605, 606 
 
 Averment of, in divorce suits Sec. 498, pp. 666-669 
 
 Allegations of, to enforce a mechanics' lien Sec. 520, pp. 702, 703 
 
 Allegations of, to enforce a vendor's lien Sec. 528, pp. 709, 710 
 
 Bills De Bene Esse — 
 
 Definition and nature of Sec. 592, p. 779 
 
 Who may maintain Sec. 593, pp. 779, 780 
 
 Bills of Discovery — 
 
 Classification and definition of Sec. 578, pp. 766, 767 
 
 When a pure bill of discovery may be filed Sec. 579, p. 767 
 
 Against whom and in what cases may be filed Sec. 580, pp. 767, 768 
 
 What matters defendant in, must disclose Sec. 581, pp. 768-770 
 
 In aid of actions at law Sec. 582, p. 770 
 
 Discovery and production of documentary evidence. .Sec. 583, pp. 770, 771 
 May be filed though party compelled to testify as a witness . . Sec. 584, p. 771 
 
INDBX. 793 
 
 Bills of Discovery — Continued. 
 
 Essential allegations of Sec. 585, pp. 772, 773 
 
 The answer to Sec. 586, pp. 773, 774 
 
 The effect of an answer to Sec. 587, pp. 774, 775 
 
 Bills of Interpleader — 
 
 Definition and object of Sec. 594, p. 781 
 
 By whom may be filed Sec. 595, pp. 781, 782 
 
 When should be filed Sec. 596, pp. 782, 783 
 
 Essential allegations of Sec. 597, pp. 783, 784 
 
 Right and extent of interpleader under the statute. . .Sec. 598, pp. 784, 785 
 
 Bills to Perpetuate Testimony — 
 
 The object of Sec. 588, p. 776 
 
 The interest necessary to maintain Sec. 589, p. 776 
 
 What must appear in a Sec. 590, pp. 776, 777 
 
 Statutory provisions as to the perpetuation of testimony 
 
 Sec. 591, pp. 777,778 
 
 Board of Education — 
 When will be enjoined from creation of illegal indebtedness.. Sec. 257, p. 369 
 
 Bodily Hurt — 
 Reasonable apprehension of, a ground of divorce Sec. 495, pp. 660, 661 
 
 Bond — 
 
 Of committee of insane person Sec. 122, pp. 203, 204 
 
 Of receiver Sees. 130, 135, pp. 214, 215, 217, 218 
 
 Of fiduciary to be reported on by commissioner See. 155, p. 247 
 
 Giving new, by fiduciary and effect thereof Sec. 157, pp. 248, 249 
 
 Every guardian shall give, when Sec. 216, p. 322 
 
 Law of estoppel as applied to municipal bonds Sec. ico, pp. 145, 146 
 
 Refunding, may be required before paying legacy, when. .Sec. 109, p. 167 
 
 Boundaries. (See CoNFtrsiON OF Boundaries.) 
 
 Confusion of, as ground of equity jurisdiction Sec. 62, p. 104 
 
 Origin of jurisdiction as to confusion of Sec. 62, p. 104 
 
 Grounds upon which equity will take jurisdiction in cases of con- 
 fusion of Sec. 62, pp. 104, 105 
 
 What must be shown to maintain bill to settle disputed Sec. 62a, p. 105 
 
 Must appear that defendant is in possession of the land Sec. 62a, p. 105 
 
 Must appear that defendant has titie to some portion of the 
 
 land Sec. 62a, p. 105 
 
 How the court may ascertain and fix the Sec. 62a, p. 105 
 
 When equity will exercise its jurisdiction as to Sec. 62a, p. 105 
 
 Boycotts. (See Injunctions.) 
 
 Definition of Sec. 279, pp. 387, 388 
 
 Injunctions with reference to Sec. 279, pp. 388, 389 
 
 Cancellation of Written Instruments — 
 
 Grounds of equity jurisdiction as to the Sec. 45, pp. 79, 80 
 
 The usual instances of the Sec. 45, p. 80 
 
 Instrument will be canceled though void Sec. 45, p. 80 
 
 Because of cloud upon titie to real estate Sec. 46, pp. 81-85 
 
794 INDBX. 
 
 Cancellation of Written Instruments — Continued. 
 
 What is a cloud upon title and what not Sec. 46, p 81 
 
 To maintain suit to remove cloud upon title to real estate, plaintiff 
 
 must be in possession, as a rule Sec. 46, pp. 82, 83 
 
 Plaintiff's possession must be actual Sec. 46, p. 83 
 
 When possession of plaintiff not necessary to maintain suit to re- 
 move cloud upon title Sec. 46, pp. 83, 84 
 
 Can not maintain suit to remove cloud upon title when the defendant 
 
 is in possession Sec. 46, p. 83 
 
 Illustrative instances of the court's action as to the matter of the i-e- 
 
 moval of cloud upon title Sec. 47, pp. 85-88 
 
 Because of fraud Sec. 48, pp. 88-89 
 
 Because of mistake Sec. 49, pp. 89-90 
 
 Because of fraudulent concealment Sec. 50, p. 90 
 
 Because of inadequacy of consideration Sec. 51, pp. 90792 
 
 Because of misrepresentation Sec. 52, p. 92 
 
 Because of undue influence Sec. 53, pp. 92-95 
 
 Because of fiduciary relationship Sec. 54, pp. 95, 96 
 
 Because of mental incapacity Sec. 55, pp. 96, 97 
 
 Because of infancy Sec. 58, p. 99 
 
 Because of drunkenness Sec. 59, pp. 99, roo 
 
 The party asking, must be in a situation to place the other in statu , 
 
 quo Sec. 60, pp. 100,101 
 
 Laches or fraud as a defense to suits for the Sec. 6i, pp. loi, 103 
 
 Caveat Emptor — 
 
 The doctrine of, applied to judicial sales Sec. 291, p. 403 
 
 Qualification of the doctrine of Sec. 291, p. 404 
 
 Clerks — 
 Of circuit and county courts to keep separate record of fidu- 
 ciaries Sec. 149, p. 239 
 
 What this record must show Sec. 149, p. 239 
 
 Inventory to be returned to Sec. 150, pp. 239, 240 
 
 Settlement of account of fiduciary in a suit must be certified to. 
 
 Sees. 154, 160, pp. 246, 252 
 
 Cloud Upon Title — 
 
 What is Sec. 46, p. 81 
 
 Mere verbal claim does not constitute Sec. 46, p. 8i 
 
 Mere assertion, thoujgh put upon record, does not constitute.. Sec. 46, p. 81 
 
 In a suit to remove, plaintiff must be in possession Sec. 46, pp. 82, 83 
 
 Plaintiff's possession must be actual Sec. 46, p. 83 
 
 Plaintiff must have title to land to remove Sec. 46, p. 83 
 
 Plaintiff need not be in possession to cancel tax deed as constitut- 
 ing Sec. 46, p. 83 
 
 Defendant must not be in possession to maintain suit to remove, 
 
 Sec. 46, p. 83 
 
 Plaintiff need not be in possession when his title is equitable, or his 
 
 interest in remainder or reversion Sec. 46, pp. 83, 84 
 
 Principle upon which suits to remove, is maintained Sec. 46, p. 85 
 
INDEX. 795 
 
 Cloud Upon Title — Continued. 
 
 Specific instances in which relief was granted by removing, 
 
 •/•••. Sec. 47, pp. 86, 87 
 
 Specific instances in which relief was refused on bills to remove, 
 
 •, Sec. 47, pp. 87-88 
 
 When party will be remitted to his action of ejectment as to claim 
 
 °^ Sec. 46, p. 84 
 
 Commissioner — 
 
 Duties of, in creditor's suit Sec. 458, pp. 610-612 
 
 Committee of Insane Person — 
 
 ■RTicn may be appointed Sec. 121, pp. 202, 203 
 
 Bond and qualification of Sec. 122, pp. 202, 203 
 
 The powers of Sec. 123, pp. 205-207 
 
 Leasing and sale of lands of insane person by Sec. 124, pp. 207-211 
 
 The application and investment of the proceeds of sale of lands of 
 
 insane person by Sec. 125, pp. 211, 212 
 
 Liability of, for debts lost or improperly paid Sec. 128, p. 214 
 
 Cannot resign, when Sec. 129, p. 214 
 
 Must pursue strictly requirements of law in -selling property of in- 
 sane person Sec. 123, p. 206 
 
 Right of, to submit matters to arbitration Sec. 34, p. 47 
 
 May sue to set aside deed or other contract, when Sec. 123, p. 205 
 
 May not sue to set aside contract or deed, when Sec. 123, p. 205 
 
 May surcharge and falsify setttlement of account Sec. 123, p. 206 
 
 Course to be pursued by, in sale of land of ward Sec. 124, pp. 209, 210 
 
 Concealment — 
 
 Fraudulent, as ground of cancellation of instruments Sec. 50, p. 90 
 
 Of the person as ground of attachment Sec. 38, p. 58 
 
 Of the debt<H-'s property or rights in action as ground of attach- 
 ment Sec. 38, pp. 62, 63 
 
 Meaning of, in attachment Sec. 38, p. 63 
 
 When, amounts to fraud Sec. 170, pp. 261, 262 
 
 By agent from principal as to matters he should disclose. Sec. 19, pp. 32, 33 
 
 Confusion of Boundaries. (See Boukdakxbs.) 
 
 As ground of equity jurisdiction Sec. '62, pp. 104, 105 
 
 What bill must show in cases of Sec. 62a, p. 105 
 
 Consideration — 
 
 Inadequacy of, to cancel written instruments Sec. 51, pp. 90-92 
 
 Mere inadequacy of, not sufficient to set aside a contract when, 
 
 Sec. 51, pp. 90, 91 
 
 When inadequacy of, raises presumption of fraud Sec. 51, p. 91 
 
 When, of deed for support fails, what relief afforded. . .Sec. 51, pp. 91, 92 
 Parol evidence to show, of deed Sec. 213, p. 318 
 
 Constructive Fraud. (See Fraud.) 
 
 Classification of Sec. 172, p. 264 
 
 Because against public policy Sec. 173, pp. 264-268 
 
 Marriage brokerage constructively fraudulent Sec. 173, p. 264 
 
796 INDEX. 
 
 Constructive Fraud — Continued. 
 
 As to acts or contracts for promoting marriage Sec. 173, p. 264 
 
 As to contracts in restraint of marriage Sec. 173, p. 265 
 
 As to contracts in restraint of trade Sec. 173, p. 265 
 
 As to contracts founded upon violations of public trust or confidence, 
 
 Sec. 173, p. 266 
 
 Cases illustrative of contracts treated as constructively fraudulent, 
 
 Sec. 173, p. 267 
 
 Which arises from the abuse of some peculiar confidential relation 
 
 existing between the parties Sec. 174, pp. 268-270 
 
 As being unconscientious or injurious to the rights of others 
 
 Sec. 174a, p. 270 
 
 Contract — 
 Arising out of immoral or illegal act not enforceable..Sec. 332, pp. 457, 45S 
 
 Equity will reform a, when Sec. 331, p. 457 
 
 To compound felony will not be canceled Sec. 333, p. 459 
 
 To procure appointment to office cannot be enforced Sec. 333, p. 459 
 
 For alimony by wife's attorney against public policy. .... .Sec. 444, p. 583 
 
 Can be no rescission of, until defendant put in statu quo, when 
 
 Sec. 60, pp. 100, 101 
 
 Illegality of, must be pleaded by any fiduciary Sec. 152, p. 242 
 
 Fraud predicable upon, made with person of weak or disordered 
 
 intellect Sec. 171, pp. 262, 263 
 
 Against public policy, not enforceable. .Sees. 173, 324, 333, pp. 265, 450, 459 
 Contribution — 
 
 The doctrine of, and the principle upon which it rests Sec. 63, p. 106 
 
 Instances wherein, may be enforced Sec. 63, p. 107 
 
 Between co-sureties Sees. 64, 390, p. 107, 521 
 
 Between partners Sec. 65, pp. 107, 108 
 
 Among tenants in common , Sec. 66, p. 108 
 
 Among creditors Sec. 67, p. 108 
 
 Among part owners of vessels Sec. 68, p. 109 
 
 Among wrongdoers Sec. 69, pp. 109, no 
 
 Among joint obligors Sec. 70, p. no 
 
 Among devisees and legatees Sec. 71, pp. no, in 
 
 Conversion — 
 Of property into money or securities as a ground of attachment 
 
 Sec. 38, pp. 59, 60 
 
 Doctrine of equitable Sec. 328, p. 453 
 
 When money regarded as land, and vice versa Sec. 328, p. 453 
 
 Corporation — 
 
 When affairs of, administered in a court of equity Sec. 72, pp. 112, 113 
 
 As to the dissolution of Sec. 73, p. 113 
 
 What is meant by dissolution of Sec. 73, p. 113 
 
 Ways in which, may be dissolved Sec. 73, p. 113 
 
 Effect of doing business by, after charter expires Sec. 73, p. 113 
 
 How forfeiture of franchise of may be enforred Sec. 73, p. 113 
 
 Dissolution of, by statute in a court of equity Sec. 74, p. 114 
 
INDEX. ygy 
 
 Corporation — Continued. 
 
 The, necessary party in suit to dissolve Sec 74 p 114 
 
 Must be dissolved only for cause ' _' _' "gee. 74' p 114 
 
 Who may have corporation dissolved Sec 74 p 115 
 
 As to collection of unpaid stock of '.Sec'. "75, pp. 115I 116 
 
 How, may enforce payment of unpaid stock Sec. 75, p! 115 
 
 How creditor of, may enforce payment of unpaid stock. . . . Sec. 75,' p. 115 
 When creditor of, may enforce payment of unpaid stock. . .Sec. 75,' p. 116 
 When stockholders of may sue in relation to corporate property and 
 
 . "S^*® Sec. 76, pp. iifr-ii8 
 
 Smt by stockholders of, to cancel stock subscriptions. Sec. 77, pp. 118, 119 
 
 As to ultra vires acts of Sec. 78, pp. 118,' 119 
 
 Stockholders of, may sue as to ultra vires acts of Sec. 78, pp. 119, 120 
 
 AVhen, cannot maintain suit because of contract ultra vires. Sec. 78, p. 120 
 Necessary party in suit to assail ultra vires acts of, when. . .Sec. 78, p. 120 
 
 Law of estoppel appUcable to municipal Sec. 100, pp. 145, 146 
 
 Law of estoppel applicable to private Sec. loi, pp. 146-148 
 
 Note given by, cannot be collected, when Sec. 333, p. 459 
 
 Creditors. (See Insolvent Debtor. ) 
 
 Contribution among Sec. 67, pp. 108, 109 
 
 Statute forbidding preference among Sec. 182, pp. 281, 282 
 
 In absence of statute insolvent debtor may prefer Sec. 200, p. 305 
 
 Meaning of insolvency Sec. 200, p. 305 
 
 Mere insolvency forbids preference among Sec. 200, p. 305 
 
 To what property statute forbidding preference among, applies 
 
 Sec. 200, pp. 305, 306 
 
 When instrument creating preference among, must be assailed 
 
 Sec. 201, pp. 306, 307 
 
 Transactions to which statute forbidding preference among, does not 
 
 apply Sec. 202, p. 307 
 
 Effect and policy of law forbidding preference among 
 
 Sec. 203, pp. 307, 309 
 
 Creditors' Bills — 
 
 Origin, definition and classification of Sec. 450, pp. 598, 599 
 
 Who may file Sec. 451, pp. 599, 600 
 
 Parties to Sec. 452, pp. 600-604 
 
 When may be maintained Sec. 453, pp. 604, 605 
 
 What, shotild show on face Sec. 454, pp. 605, 606 
 
 When snspends other suits Sec. 455, pp. 606, 607 
 
 What property reached by Sec. 456, pp. 608, 609 
 
 Order of reference in creditors' suits Sec. 457, pp. 609, 610 
 
 Duties of commissioners to whom, referred and proceedings before 
 
 them Sec. 458, pp. 610-612 
 
 Effect of convening creditors before a commissioner. .Sec. 459, pp. 613, 614 
 
 Lien of judgment upon debtor's real estate Sec. 460, pp. 615, 616 
 
 Docketing of judgments and the effect thereof. Sec. 461, pp. 6i6-6i8 
 
 Application of the statute of limitations in creditors' suits 
 
 Sec. 462, pp. 618, 619 
 
798 INDBX. 
 
 Creditors' Bills — Continued. 
 
 Limitation of the right to enforce judgment and other liens 
 
 Sec. 463, pp. 620, 621 
 
 As to priority of judgment and other liens Sec. 464, pp. 621-623 
 
 When error to decree sale of land Sec. 465, p. 623 
 
 When, -will not be dismissed Sec. 466, pp. 623, 624 
 
 Power and jurisdiction of a court of equity on Sec. 467, pp. 624, 625 
 
 The decree in a creditors' suit Sec. 468, pp. 625-627 
 
 Jurisdiction in, does not depend on statute Sec. 450, p. 598 
 
 Three classes of , Sec. 450, p. 599 
 
 A single creditor may file Sec. 451, p. 599 
 
 The rule as to joinder of plaintiffs in Sec. 451, p. 600 
 
 All lien creditors should be parties to Sec. 451, pp. 599, 600 
 
 Who may file petition in, and thus become party to Sec. 452, p. 602 
 
 When process must issue on petition filed in Sec. 452, p. 602 
 
 Assignor and assignee of judgment may be made parties to. .Sec. 452, p. 602 
 
 General rule as to defendants to Sec. 452, pp. 602, 603 
 
 Essential requisite to the maintainance of Sec. 453, p. 604 
 
 When plaintiff need not have lien to maintain Sec. 453, p. 604 
 
 When must be return of execution before party can maintain 
 
 Sec. 453, p. 605 
 
 Suit may be brought before return day of execution, when. .Sec. 453, p. 605 
 
 Reaches every species of property Sec. 456, p. 608 
 
 Enumeration of kinds of property reached by Sec. 456, p. 608 
 
 Property that may be sold under execution not reached by . . Sec. 456, p. 609 
 
 Pleadings and proof must authorize reference in Sec. 457, p. 609 
 
 When, should be reference to commissioner on Sec. 457, p. 609 
 
 When can be no sale on without reference to commissioner, when, 
 
 Sec. 457, p. 609 
 
 Commissioner should post "Notice to lienholders in," when.. Sec. 458, p. 610 
 How long "Notice to lien holders" should be published 
 
 Sec. 458, pp. 610, 611 
 
 Notice of time and place of taking the account by the commissioner 
 
 should be given to the parties to the suit Sec. 458, p. 6n 
 
 Can be no sale on, until it appears that rents will not pay the debts 
 
 of the creditors Sec. 458, p. 611 
 
 Commissioner must report all of debtor's real estate. .Sec. 458, pp. 611, 612 
 Report of commissioner must show order of priority of liens 
 
 Sec. 458, p. 612 
 
 I All lienholders may present and prove their claims before the com- 
 missioner. Sec. 458, p. 612 
 
 Creditors may contest claims of each other before the commissioner 
 
 on Sec. 458, p. 612 
 
 When party barred of claim who does not prove it before commis- 
 
 stoner in Sec. 459, pp. 613, 614 
 
 Cruel or Inhuman Treatment — 
 As ground of divorce Sec. 494, pp. 657-659 
 
INDEX. 799 
 
 Curtesy — 
 
 When husband entitied to, in wife's lands Sec. 79, pp. 1 21-123 
 
 Bssential elements of, Sec. 79, p. 121 
 
 As to effect of married woman's act upon Sec. 79, pp. 121, 122 
 
 In what specific lands husband may claim Sec. 79, p. 122 
 
 At common law Sec. 79, pp. 121, 123 
 
 How husband may be barred of his Sec. 80, pp. 123, 124 
 
 Damages — 
 Unliquidated, not subject of abatement in sale of real estate 
 
 Sec. 9, pp. 18, 19 
 
 When court will award an issue to determine quantum of, when land 
 
 has been taken for public use Sec. 267, p. 396 
 
 Wlien and how equity will assess Sec. 319, p. 446 
 
 Decree. (See Judgments and Decrees.) 
 
 Form of Sec. 286, pp. 395, 396 
 
 Interlocutory or final Sec. 286, p. 396 
 
 Defendant may file answer any time before final Sec. 286, p. 396 
 
 When interlocutory, and when final Sec. 287, p. 397 
 
 Difierent kinds of final Sec. 387, pp. 397, 398 
 
 When a decree may be entered in a cause Sec. 288, pp. 399, 400 
 
 When a, between co-defendants may be entered Sec. 289, p. 400 
 
 When a, will be set aside Sec. 290, pp. 401, 402 
 
 Formerly operated only in personam Sec. 330, p. 456 
 
 Now has force and effect of a judgment Sec. 330, p. 456 
 
 Equity will, sale of railroad passing through different states 
 
 Sec. 330, p. 457 
 
 In attachment suits Sec. 44, pp. 76-78 
 
 Against defendant in attachment Sec. 42, p. 75 
 
 Against garnishee in attachment Sec. 42, p. 75 
 
 Can be no personal, in attachment, when Sec. 44, p. 77 
 
 When can be no, in attachment Sec. 44, p. 78 
 
 Not necessary to ascertain rents and profits in attachment before 
 
 entering, for sale of land Sec. 44, pp. 77, 78 
 
 In suits for specific performance Sec. 410, pp. 550, 551 
 
 In suits in which alimony is allowed Sec. 443, p. 587 
 
 In suit for annulment of marriage Sec. 448, pp. 596, 597 
 
 In creditors' suit .« Sec. 468, pp. 625-627 
 
 Should require refunding bond before providing payment of legacy, 
 
 Sec. 109, p. 167 
 
 Calculation of interest in entry of a Sec. 428, pp. 570, 571 
 
 Deed of Trust — 
 
 Origin and definition of Sec. 469, pp. 628, 629 
 
 Who may execute Sec. 470, p. 629 
 
 What property may be conveyed by Sec. 471, pp. 629-631 
 
 What sufficient description of property in a Sec. 472, pp. 631, 632 
 
 Description of the debt intended to be secured by the 
 
 Sec. 473, pp. 632, 633 
 
 As to future advances under a Sec. 474, p. 633 
 
8oo INDEX. 
 
 Deed of tiijist—Continued. 
 
 Form and validity of a Sec. 475, p. 634 
 
 Reservations by grantor in a, and his rights as to the trust property, 
 
 after the execution on the Sec. 476, pp. 634, 635 
 
 The title of the trustee under a Sec. 477, pp. 635, 636 
 
 Relation and duties of the trustee to the parties to a. .Sec. 478, pp. 636-638 
 
 Kotice and terms of sale under a Sec. 479, pp. 638-640 
 
 As to the trustee making sale of the trust property . . Sec. 480, pp. 640-642 
 Deed of the trustee, and what it conveys to purchaser 
 
 Sec. 481, pp. 642, 643 
 
 Suit to set aside sale made by trustee under a Sec. 482, pp. 643, 644 
 
 Order in which debts secured by, should be paid Sec. 483, pp. 644, 645 
 
 Remedy of cestui que trust where trustee has misapplied trust funds 
 
 under a Sec. 484, p. 645 
 
 Action at law on debt secured by a Sec. 485, p. 646 
 
 Suits in equity to enforce lien of Sec. 486, p. 646 
 
 When debt secured by, barred by statute of limitations 
 
 Sec. 487, p. 646, 647 
 
 Can be no sale under pending creditors' suit Sec. 465, p. 623 
 
 Anyone capable of making contract may make a Sec. 470, p. 629 
 
 Husband must join with wife to enable her to make Sec. 470, p. 629 
 
 As to deed of trust on after-acquired property Sec. 471, pp. 629, 630 
 
 Description in, must be sufficient to identify property Sec. 472, p. 631 
 
 Description by metes and bounds not necessary in Sec. 472, p. 631 
 
 Description conveying all of grantor's property Sec. 472, p. 632 
 
 Debt need not be truly described in Sec. 473, p. 632 
 
 Description of debt must be such as not" to mislead Sec. 473, p. 632 
 
 Recitals as to debt in, not conclusive Sec. 473, p. 632 
 
 No particular form of, necessary Sec. 475, p. 634 
 
 Distinction between reservation and exception in Sec. 476, pp. 634, 635 
 
 Reservation in must not be inconsistent with purpose of. . .Sec. 476, p. 635 
 
 Trustee in, holds legal title Sec. 477, p. 635 
 
 Trustee agent of both parties to a Sec. 478, p. 636 
 
 Trustee in, must conform to terms of, in making sale Sec. 478, p. 635 
 
 Trustee in, must be personally present at sale under a. . . .Sec. 478, p. 637 
 Trustee in, must apply to court to remove all impediments to a fair 
 
 sale under Sec. 478, p. 637 
 
 When trustee in, must sell in separate parcels under a Sec. 478, p. 637 
 
 When trustee in, must name the place of sale of property in mak- 
 ing sale under a Sec. 478, p. 637 
 
 When trustee in, need not give bond before making sale under 
 
 Sec. 478, p. 638 
 
 How trustee in, should give notice of sale under a Sec. 479, p. 638 
 
 What the notice of sale by trustee under, should contain 
 
 Sec. 479, pp. 638, 639 
 
 When notice of sale by trustee under, should be published in a 
 
 newspaper in making sale under a Sec. 479, p. 639 
 
 When notice of sale under a, should be served on the parties to a . . 
 
 Sec. 480, p. 639 
 
INDEX. 8oi 
 
 Deed of Ttmsx— Continued. 
 
 When terms of sale under a, should be for cash and when not 
 
 Sec. 479, p. 639 
 
 When trustee in, cannot sell after death of grantor in Sec. 480, p. 641 
 
 When suit in equity cannot be maintained to enforce the lien of a. 
 
 Sec. 486, p. 646 
 
 Defense — 
 
 To suits in attachment cases Sec. 43, pp. 75, 76 
 
 To suits for the cancellation of written instruments 
 
 Sees. 60, 61, pp. 100-103 
 
 To suits, by way of plea of stated accotmt Sec. i6b, p. 30 
 
 To suit by garnishee in attachment Sec. 42, pp. 71, 72 
 
 To the charge of fraud Sec. 179, pp. 275, 277 
 
 To suits for specific performance Sec. 409, pp. 549, 550 
 
 To suits for divorce Sec. 499, pp. 669-671 
 
 Desertion — 
 
 Of husband by wife as a bar to dower Sec. 98, pp. 139, 140 
 
 As ground of divorce Sec. 491, pp. 652-655 
 
 Dissolution — 
 
 Of corporations Sec. 73, p. 113 
 
 Ways of affecting, of corporations ; Sec. 73, p. 113 
 
 By ouster of franchise must be by a direct proceeding Sec. 73, p. 113 
 
 Of corporation by court of equity Sec. 74, p. 114 
 
 Corporation necessary party to suit for Sec. 74, p. 114 
 
 Of corporation in equity not matter of right Sec. 74, p. 114 
 
 Of motion for, of injunction Sec. 283, p. 392 
 
 When injtmction will be dissolved Sec. 284, pp. 392-394 
 
 Of effect of, of an injunction Sec. 285, p. 394 
 
 Effect of, of partnership Sec. 387, p. 518 
 
 Divorce — 
 
 Jurisdiction in cases of Sec. 488, pp. 648-650 
 
 Kinds of Sec. 488, p. 649 
 
 From the bond of matrimony Sec. 489, pp. 650, 651 
 
 Natural or incurable impotency of body as gfround of 
 
 Sec. 490, pp. 651, 652 
 
 Willful abandonment or desertion as a ground for. ..Sec. 491, pp. 652-655 
 
 Adultery as ground of Sec. 492, p. 655 
 
 From bed and board Sec. 493, pp. 656, 657 
 
 Cruel or inhuman treatment as a ground of Sec. 494, pp. 657-659 
 
 What is cruel or inhtmian treatment Sec. 494, pp. 657, 658 
 
 When failure to furnish food, clothing and medical aid amounts to 
 
 cruel treatment Sec. 494, p. 659 
 
 When treatment tending to bodily harm is cruel and inhuman . . 
 
 Sec. 494, p. 659 
 
 A false charge of prostitution is cruel treatment, when.. Sec. 494, p. 659 
 
 Reasonable apprehension of bodily harm as ground of 
 
 Sec. 495, pp. 660, 661 
 
 51 
 
S02 INDSX. 
 
 Divorce — Continued. 
 
 Habitual drunkenness as a ground of Sec. 496, pp. 661, 662 
 
 What is an habitual drunkard Sec. 496, pp. 661, 662 
 
 Occasional acts of drunkenness not habitual Sec. 496, p. 662 
 
 Intoxication produced by opiates not drunkenness as ground for. . 
 
 Sec. 496, p. 662 
 
 The evidence in suits for Sec. 497, p. 662-664 
 
 Admission and declarations of parties competent evidence in suits 
 
 for Sec. 497, pp. 663-666 
 
 Uncorroborated testimony of party insufiS^cient to grant. . .Sec. 497, p. 666 
 Burden of -proof on the plaintiff to establish ground for. Sec. 497, p. 666 
 
 The bill in suits for Sec. 498, pp. 666-669. 
 
 Bill for, must show jurisdiction of court Sec. 498, p. 666 
 
 Bill must show marriage of parties Sec. 498, pp. 666, 667 
 
 How marriage should be alleged in bill for Sec. 498, p. 667 
 
 Not necessary to negative defenses in bill for Sec. 498, p. 667 
 
 How adultery charged in bill for Sec. 498, pp. 667, 668 
 
 ■Allegation of abandonment or desertion in bill for Sec. 498, p. 668 
 
 Allegation of cruelty in bill for Sec. 498, p. 668 
 
 Allegation of drunkenness in bill for Sec. 498, p. 668 
 
 Allegation of sentence to penitentiary in bill for Sec. 498, p. 668 
 
 Allegation of incurable impotency in bill for Sec. 498, pp. 668, 669 
 
 Allegation of antecedent pregnancy in bill for Sec. 498, p. 669 
 
 Allegation of prostitution or licentiousness in bill for Sec. 498, p. 66g 
 
 Allegations for injunction in bill for Sec. 498, p. 669 
 
 Usual to set out names of children in bill for Sec. 498, p. 669 
 
 The prayer of the bill for Sec. 498, p. 669 
 
 When plaintiff should sue by next friend in bill for Sec. 498, p. 669 
 
 When guardian ad litem appointed in suit for Sec. 498, p. 669 
 
 Defenses to suits for, and how made Sec. 499, pp. 669-671 
 
 Bill cannot be taken for confessed in suits for Sec. 499, p. 669> 
 
 The several grounds of defense to suits for Sec. 499, pp. 670, 671 
 
 Effect of a decree of Sec. 500, pp. 671-673 
 
 Dower — 
 
 In what lands a widow may claim, in Sec. 81, pp. 125-128 
 
 Extent of the widow's Sec. 81, pp. 125, 126 
 
 When, may be assigned in kind by proper metes and bounds 
 
 ' Sec. 81, p. 126- 
 
 Seizure of husband an essential element of Sec. 81, pp. 126, 127 
 
 Character of seizure to entitle widow to Sec. 81, p. 12& 
 
 Husband's estate need not be indefeasible to entitle widow to 
 
 Sec. 82, pp. 128, I29- 
 
 In partnership lands Sec. 83, p. 129. 
 
 In lands subject to vendors' and other liens Sec. 84, pp. 129, 130 
 
 In growing crops Sec. 85, p. 130 
 
 In mineral lands Sec. 86, pp. 130-132 
 
 May have, in mines already opened Sec. 86, pp. 130, 131 
 
 Cannot open mines for the purpose of assigning Sec. 86, p. 132 
 
 In wild and uncultivated lands Sec. 87, p. 132 
 
INDEX. 803 
 
 Cower — Continued. 
 
 In equitable estates Sec. 88, pp. 132, 133 
 
 In estates in remainder and reversion Sec. 89, pp. 133, 134 
 
 As to, where husband held mere legal title Sec. 90, p. 134 
 
 Who may have, assigned Sec. 91, pp. 134, 135 
 
 A gross sum in lieu of, in kind Sec. 92, pp. 135, 136 
 
 Aside from a statute there can be no gross sum in lien of 
 
 : ■ Sec. 92, ppi 135, 136 
 
 Commutation of Sec. 93, pp. 136, 137 
 
 Effect of commutation of, upon fee of land Sec. 93, p. 136 
 
 When only, can be commuted Sec. 93, pp. 136, 137 
 
 Should be no sale of land, until the dower therein is assigned. . . 
 
 Sec. 94, p. 137 
 
 Bar to, by wife's joinder in deed from husband » Sec. 95, p. 137 
 
 Bar to, by provision in lieu thereof Sec. 96, pp. 137-139 
 
 Usual mode of making provision in lieu of Sec. 96, p. 138 
 
 As to antenuptial contract in bar of Sec. 96, p. 138 
 
 Bar of, by lapse of time Sec. 97, p. 139 
 
 Ten years is the time required for the bar of Sec. 97, p. 139 
 
 Bar of, because of wife's desertion of the husband Sec. 98, pp. 139, 140 
 
 When widow entitled to, in surplus proceeds of sale of husband's 
 
 real estate Sees. 81, 84, pp. 125, 126, 129 
 
 Drunkenness — 
 
 Cancellation of contracts and other instruments because of 
 
 Sees. 59, 172, pp. 99, 100, 263 
 
 What degree of, will avoid contracts Sec. 59, pp. 99, 100 
 
 Who may take advantage of instrument made by one in the state of, 
 
 Sec. 59, p. 100 
 
 ■ Habitual, as ground of divorce Sec. 496, pp. 661, 662 
 
 Easement — 
 
 Equity will enjoin interference with an easement, when. . .Sec. 350, p. 470 
 Ejectment. (See INJUNCTIONS.) 
 When the cutting of timber will be enjoined pending the action of, 
 
 Sec. 239, p. 352 
 
 Election — 
 
 Definition of, and the principles npon which it rests Sec. 501, p. 674 
 
 When a party is put to his Sec. 502, pp. 674, 675 
 
 In what cases the doctrine of, applies Sec. 503, p. 675 
 
 What persons bound to make Sec. 504, p. 675 
 
 By a widow between her estate under the law and a testamentary 
 
 gift in lieu thereof Sec. 505, pp. 676, 677 
 
 Effect of, when made Sec. 506, p. 677 
 
 Equity — 
 
 Origin of Sec. i, pp. i, 2 
 
 Definition of - Sec. 2, p. 3 
 
 Has been variously defined Sec. 2, p. 3 
 
 Nature and purpose of Sec. 2, pp. 3, 4 
 
 Matters of which it takes jurisdiction Sec. 2, p. 4 
 
8o4 INDBX. 
 
 Equity — Continued. 
 
 General rules as to jurisdiction in Sec. 3, pp. 4-8 
 
 Classification of jurisdiction in Sec. 4, pp. 8, 9 
 
 What right will be enforced in Sec. 319, pp. 446, 447 
 
 Only aids the vigilant Sec. 325, p. 451 
 
 Equality is Sec. 326, p. 451 
 
 Looks to the intent rather than the form Sec. 327, pp. 451, 452 
 
 Regards as done that which ought to be done Sec. 328, p. 453 
 
 Imputes an intention to fulfill an obligation Sec. 329, p. 455 
 
 Acts in personam Sec. 330, p. 456 
 
 Acts specifically Sec. 331, p. 457 
 
 Has jurisdiction in will contest Sec. 429, p. 572 
 
 Estoppel — 
 
 Equitable, nature and definition of Sec. 99, pp. 141-144 
 
 Design to mislead not necessary to an Sec. 99, p. 142 
 
 The essential elements of an equitable Sec. 99, pp. 142, 143 
 
 Equitable, may be asserted in court of law Sec. 99, p. 144 
 
 Parties must be in privity with each other, to invoke equitable 
 
 Sec. 99, p. 144 
 
 Equitable, applicable to municipal corporations, when 
 
 Sec. 100, pp. 145, 146 
 
 The law of, applies to private corporations Sec. 101, pp. 146-148 
 
 The law of, as applied to married women Sec. 102, pp. 148-151 
 
 Infants, as a rule, not subject to the law of Sec. 103, pp. 151-153 
 
 Doctrine of, cannot be invoked when in contravention of law or 
 
 public policy Sec. 104, pp. 153, 154 
 
 Cases illustrative of the doctrine of Sec. 105, pp. 154-159 
 
 Certainty and mutuality of Sec. 106, p. 159 
 
 Must rest upon statement of fact Sec. 99, p. 143 
 
 Cannot be based on promise to pay debt of third party. . . .Sec. 104, p. 154 
 
 Cannot prevent inquiry into matter of usury Sec. 104, p. 154 
 
 Of party standing by and seeing his property sold Sec. 105, p. 154 
 
 Of party questioning validity of judicial sale Sec. 105, p. 154 
 
 Of party objecting to manner of constructing boom Sec. 105, p. 154 
 
 Of party asserting claim under option Sec. 105, pp. 154, 155 
 
 Of party maintaining action for damages Sec. 105, p. 155 
 
 Of married woman to obstruct right of way Sec. 105, p. 155 
 
 Of party by recitals in a lease Sec. 105, p. 155 
 
 Of party objecting to sale of land in partition suit. .Sec. 105, pp. 155, 156 
 
 Of sureties denying that principal in bond was deputy Sec. 105, p. 156 
 
 Of party denying that he did not read instrument signed by him. . . 
 
 Sec. 105, p. 156 
 
 Of party denying title to land in deed of general warranty 
 
 Sec. 105, p. 156 
 
 Of party to deny validity of contract of sale Sec. 105, pp. 156, 157 
 
 Of party denying validity of supersedeas bond Sec. 105, p. 157 
 
 Of party to claim interest in land Sec. 105, p. 157 
 
 Of party asserting counter claims Sec. 105, p. 157 
 
INDBX. 805 
 
 Estoppel— Co«^j««tfrf. 
 
 Of party to repudiate contract of sale Sec. 105, p. 157 
 
 Cases -wherein doctrine of, does not apply Sec. 105, pp. 158, 159 
 
 Evidence — 
 
 To rescind instrument because of mistake Sec 49 pp 89 90 
 
 As to undue influence........ Sec. 53.' pp.' 94! 95 
 
 As to vendor's representations m sale of real estate Sec. ri, pp. 20 21 
 
 Necessary to sustain the charge of fraud gee. 180, pp. 277, '278 
 
 Of fraud in suits to set aside fraudulent conveyances 
 
 : Sees. 187-190, pp. 288-296 
 
 Of the consideration in suit to set aside fraudulent conveyances 
 
 ^ • • ■. •,•■:; ^^- '91. pp. 296. 297 
 
 Possession as, of gift Sec. 205, p. 31 1 
 
 Required to establish a gift Sees. 211, 329, pp. 316, 317, 455, 456 
 
 Parol, as to advancements Sec. 213 p. 118 
 
 To show the existence of an advancement Sec. 215, pp. 319, 320 
 
 Injunctions to judgments and decrees because of, after discovered, 
 
 Sec. 269, pp. 378, 379 
 
 Necessary to relieve from mistake Sec. 346, p. 468 
 
 Cumulative, what is Sec. 353, p. 477 
 
 After discovered, in matters of new trials Sec. 353, pp. 476, 477 
 
 Parol, in suits for specific performance Sec. 403, pp. 558, 559 
 
 To establish lost will Sec. 437a, pp. 578, 579 
 
 Executions. (See Injunctions.) 
 
 Injunctions to enjoin sales under Sec. 247, pp. 360, 361 
 
 Executors and Administrators. (See Personai, RbfrbsenTaTivss.) 
 
 The appointment and qualification of. Sec. 107, pp. 160-162 
 
 May qualify before county court or the clerk thereof in vacation.. . . 
 
 Sec. 107, p. 160 
 
 The penalty of the bond of Sec. 107, p. 161 
 
 The condition of the bond of Sec. 107, p. 161 
 
 When bond not required of Sec. 107, p. 161 
 
 Who may be appointed Sec. 108, pp. 162-16.S 
 
 Who entitled to be appointed, in the first instance Sec. 108, p. 162 
 
 What, may do before appointment confirmed by court Sec. 107, p. 162 
 
 When creditor may be appointed Sec. 108, p. 163 
 
 When sheriff may be appointed Sec. 108, p. 163 
 
 After appointment of sheriff, in discretion of court to revoke his ap- 
 pointment Sec. 108, p. 163 
 
 As to the appointment of a non-resident Sec. 108, p. 164 
 
 Effect of appointment of sheriff before expiration of three months, 
 
 Sec. 108, p. 164 
 
 Liability of sheriff for his acts as Sec. 108, p. 164 
 
 Hffect of the marriage of a woman after her appointment as 
 
 Sec. 108, pp. 164, 165 
 
 Executor of an executor cannot administer on estate of first tes- 
 tator - Sec. ro8, p. 165 
 
 The powers of executors and administrators Sec. 109, pp. 165-169 
 
8o6 INDBX. 
 
 Executors and Administrators — Continued. 
 
 No power to act until qualification Sec. 109, p. 165 
 
 Have full control of the personal estate Sec. 109, p. 165 
 
 IVCay sell or exchange choses in action, when Sec. 109, p. 165 
 
 May submit matters to arbitration Sees. 109, 34, pp. 165, 166, 47, 48 
 
 . May compound or release a debt Sec. 109, p. 166 
 
 May pay attorneys' fees, when Sec. 109, p. 166 
 
 May sell the estate, when Sec. 109, p. 166 
 
 When no power to sell real estate , Sec. 109. pp. 166, 167 
 
 May assign notes Sec. 109, p. 167 
 
 May extend time of payment of judgment, when Sec. 109, p. 167 
 
 May erect tombstone or monument Sec. 109, p. 167 
 
 When may withhold payment of legacy Sec. 109, p. 167 
 
 No decree can be -rendered against, for payment of legacy, when . . . 
 
 ..Sec. 109, p. 167 
 
 May appeal from judgment or decree or obtain injunctions without 
 
 bond Sec. 109, pp. 167, 168 
 
 Can not purchase at their own sale Sec. 109, p. 168 
 
 Cannot transfer note, when Sec. rog, p. 168 
 
 Cannot impeach act of decedent, when Sec. 109, p. 168 
 
 Cannot pay for professional services, when Sec. 109, p. 168 
 
 Cannotbindestateof decedent by their own contract, when.Sec. 109, p. i68 
 
 The powers of, under a will Sec. no, pp. 169-171 
 
 Powers of, as to the sale of real estate Sec. no, p. 169 
 
 As to naked power of sale of real estate Sec. no, p. 169 
 
 As to power of sale of real estate coupled with an interest.. Sec. no, p, 169 
 
 As to qualified power of sale of real estate Sec. no, p. 170 
 
 Words creating power of sale by Sec. no, p. 169 
 
 Effect upon purchaser, of sale of real estate, under will when not 
 
 authorized Sec. no, p. 170 
 
 Recitals in the deed of, to purchaser of real estate Sec. no, p. 170 
 
 Sale of real estate by survivor of two or more Sec. no, p. 170 
 
 Purchaser of real estate from, need not look to application of pur- 
 chase-money Sec. no, p. 171 
 
 May enter into executory contract for sale of real estate.. . .Sec. no, p. 171 
 
 When may sell real estate without order of court Sec. no, p. 171 
 
 Power of sale does not authorize exchange of land Sec. no, p. 171 
 
 Sale must be for money consideration Sec. no, p. 171 
 
 No power to carry on trade or business of testator, when. .Sec. iio.p . 171 
 
 The duties of personal representatives Sec. noa, pp. 171-174 
 
 Must act in good faith and with prudence Sec. noa, pp. 171, 172 
 
 Statutory duties of Sec. noa, p. 172 
 
 Must return inventory of estate, when Sec. noa, p. 172 
 
 What inventory must show Sec. noa, p. 172 
 
 With what to be charged in appraisement bill Sec. noa, pp. 172, 173 
 
 Must administer whole estate Sec. noa, p. 173 
 
 The appointment of a creditor as Sec. noa, p. 173 
 
 Sale to be made by Sec. noa, pp. 173, 174 
 
 What to be charged as assets to Sec. in, pp. 174, 175 
 
INDBX. 807 
 
 Executors and Administrators — Continued. 
 
 What are assets Sec. iii, p. 175 
 
 What the law regards as a devastavit Sec. 112, pp. 176, 178 
 
 Meaning of devastavit Sec. 112, p. 176 
 
 When not to be charged beyond assets from defect in pleading 
 
 _ Sec. 112, pp. 176, 177 
 
 Diligence required as to the collection of debts Sec. 112, p. 176 
 
 Effect of judgment against Sec. 112, p. 177 
 
 Effect of acts of, under the government and laws of Virginia at 
 
 Richmond Sec. 112, pp. 177, 178 
 
 Investments by the executor of the estate of his testator 
 
 Sec. 113, pp. 178, 179 
 
 Honesty and diligence required as to investments Sec. 113, pp. 178, 179 
 
 As to the stating of the accounts of, and the charge of interest 
 
 therein Sec. 114, pp. 179-181 
 
 With what charged in their accounts Sec. 114, pp. 179, 180 
 
 With what credited in their accounts Sec. 114, p. 180 
 
 How their accounts should be stated Sec. 114, pp. 180, 181 
 
 The charges of interest in their accounts Sec. 114, p. 180, 181 
 
 Payment of legacies by Sec. 115, pp. 181, 182 
 
 When legacies payable by. Sec. 115, p. 181 
 
 Voluntary payment of legacy cannot be recovered back by, when, 
 
 Sec. 115, pp. 181, 182 
 
 When refunding bond may be required by, before payment of leg- 
 acy Sec. 115, p. i8r 
 
 When common-law action may be maintained against, for payment 
 
 of legacy Sec. 115, p. 182 
 
 Effect of overpayment of one legatee Sec. 115, p. 182 
 
 As to the payment of interest on legacies by Sec. 115a, pp. 182-185 
 
 When interest payable on legacies Sec. 115a, pp. 182-184 
 
 No common law action maintainable against, for a legacy, when . . . 
 
 Sec. iisa, p. 185 
 
 The different kinds of legacies Sec. 116, pp. 186-188 
 
 When real estate charged with the payment of legacies 
 
 Sec. ii6a, pp. 188-190 
 
 The order of the payment of debts and claims by Sec. 117, pp. 190-194 
 
 Statutory requirement as to the order in which debts must be paid 
 
 by Sec. 117, p. 190 
 
 Existent rights of creditors cannot be changed after death of the 
 
 debtor Sec. 117, p. 191 
 
 Statutes as to order of paying debts of decedent are mandatory. . . . 
 
 Sec. 117, p. 191 
 
 Priority of mortgages and other liens after death of debtor.. Sec. 117, p. 192 
 As to off-sets against demand of insolvent deceased debtor 
 
 Sec. 117, pp. 192, 193 
 
 As to off-set purchased after death of debtor Sec. 117, p. 193 
 
 Can pay no debt that may be legally defeated Sec. 117, pp. 193, i94 
 
 May pay claim against estate before it is reduced to a judgment — 
 
 Sec. 117, p. 194 
 
8o8 IND5X. 
 
 Executors and Administrators — Continued. 
 
 When must pay for work done after death of decedent Sec. 117, p. 194 
 
 The order in which the property of a decedent must be applied in 
 
 payment of his debts Sec. 117a, pp. 194, '95 
 
 The commission allowed to Sec. n8, pp. 195-197 
 
 The usual commission five per cent Sec. 118, pp. 195 
 
 When not allowed commissions Sec. 1 18, pp. 195, 196 
 
 When double commissions will be allowed to Sec. 118, pp. 196, 197 
 
 Surcharging and falsif3dng the accounts of Sec. 119, pp. 197, 19S 
 
 Report of settlement of accounts of, when confirmed prima facie 
 
 correct Sec. 119, p. 197 
 
 No statutory limit as to the time in which settlement of accounts of, 
 
 may be surcharged and falsified Sec. 119, p. 197 
 
 How accounts of, may be surcharged and falsified Sec. 119, p. 198 
 
 Executors de.son tort and their rights Sec. 119a, pp. 198, 199 
 
 Executor de son Tort — 
 
 What is an Sec. 119a, pp. 198, 199 
 
 Rights and liabilities of Sec. 119a, p. 199 
 
 Fiduciaries — 
 
 Who are Sec. 120, p. 201 
 
 Liability of, for debts lost or improperly paid Sec. 128, p. 214 
 
 Cannot resign, when Sec. 129, p. 214 
 
 ' List of, to be kept by the clerks of the circuit and county courts. . . . 
 
 Sec. 149, p. 239 
 
 Inventory of property coming into the hands of all, to be returned 
 
 to the clerk of the court appointing Sec. 150, pp. 239, 240 
 
 Return of inventory of sales made by, to the clerk. ..Sec. 151, pp. 240, 241 
 Liability of, for debts lost or improperly paid, further considered. . . 
 
 Sec. 152, pp. 241, 242 
 
 The rendition and settlement of the accounts of Sec. 153, pp. 242-246 
 
 Mode of settling accounts of, before a commissioner 
 
 Sec. 153, pp. 243, 244 
 
 1 Penalty for the failure of, to settle accounts Sec. 154, pp. 246, 247 
 
 Bond of, to be reported on by commissioner Sec. 155, p. 247 
 
 Order annuling and revoking powers of Sec. 156, p. 248 
 
 The giving of a new bond by, the effect thereof Sec. 157, pp. 248, 249 
 
 Commissioner's duty and procedure in reference to accounts of, 
 
 before him for settlement Sec. 158, pp. 249-251 
 
 Duty of court as to report of commissioner as to settling accounts of. 
 
 -Sec. 159, p. 251 
 
 Surcharging and falsifying the accounts of Sec. 160, pp. 251-253 
 
 When court will order funds in hands of, to be invested. ..Sec. i6i, p. 253 
 Disposal of securities standing in name of, upon death or revoca- 
 tion of powers of Sec. 162, p. 253 
 
 Power and duty of court after confirmation of report of accounts of. 
 
 Sec. 163, pp. 253, 254 
 
 How order of court as to matters concerning, enforced. . .Sec. 165, p. 255 
 Right of, to submit matters to arbitration Sec. 34, pp. 47, 48 
 
INDBX. 
 
 809 
 
 Fiduciary Relationship — 
 
 Undue influence by one occupying Sgg_ is-i p aj 
 
 Cancellation of instruments because of gee. 54, pp. '95 96 
 
 Person holding a, cannot take any advantage thereof Sec. 54, p'. 95 
 
 Purchase by one holding a, will be set aside, when Sec. 54, pp. '95^ 96 
 
 Forfeitures and Penalties — 
 
 Jurisdiction in equity and origin thereof as to Sec. 507, pp. 678, 679 
 
 Forfeiture in cases of non-payment of rent Sec. 508, p. 679-681 
 
 Forfeiture in cases of breach of covenants and conditions 
 
 ■ : Sec. 508, pp. 679, 681 
 
 Statutory provision as to forfeiture for non-payment of rent 
 
 Sec. 508, pp. 679, 680 
 
 When equity will not, as a rule, relieve from forfeiture for breach of 
 
 covenant for repairing, insuring, etc Sec. 508, p. 680 
 
 "When negligence will prevent relief from Sec. 508, p. 681 
 
 Whether sum agreed to be paid on breach of condition is liquidated 
 
 damages or a penalty Sec. 509, pp. 681-683 
 
 Where principal becomes due in default of payment of interest, in- 
 surance, etc Sec. 509, pp. 682, 683 
 
 Relief as to statutory penalties Sec. 510, p. 683 
 
 Question of forfeiture tried at law cannot be retried in equity 
 
 Sec. 511, pp. 683, 684 
 
 Specific instances of forfeiture wherein relief has or has not been 
 
 granted Sec. 512, pp. 684, 685 
 
 Waiver of forfeiture : Sec. 513, pp. 685, 686 
 
 Fraud- 
 Definition and kinds of Sees. 48, 166, pp. 88, 256, 257 
 
 Difficult to define .Sec. 48, p. 88 
 
 Concurrent jurisdiction of equity in matters of Sec. 167, pp. 257, 258 
 
 What misrepresentations amount to Sec. 168, pp. 258-260 
 
 Mere expression of opinion will not amount to, when 
 
 ... Sec. 169, pp. 260, 261 
 
 When concealment amounts to Sec. 170, pp. 261, 262 
 
 As to contracts with persons of weak or disordered intellect, or la- 
 boring tmder mental incapacity Sec. 171, pp. 262-264 
 
 Constructive, classification of Sec. 172, p. 264 
 
 Acts treated as fraudulent because against public policy 
 
 Sec. 173, pp. 264-268 
 
 As to marriage brokerage contracts Sea 173, p. 264 
 
 As to contracts in restraint of marriage Sec. 173, p. 265 
 
 As to contracts in general restraint of trade Sec. 173, pp. 265, 266 
 
 As to contracts for the advancement of prices Sec. 173, p. 266 
 
 As to all agreements founded upon violations of public trust, etc. . . 
 
 Sec. 173, p. 266 
 
 As to contracts of parent as to control or religious training of child. 
 
 Sec. 173, p. 267 
 
 As to contracts as to public and official matters Sec. 173, p. 267 
 
8lO INDBX. 
 
 Fraud — Continued. 
 
 As to contracts for arbitration Sec. 173, p. 267 
 
 As to constructive, arising from the abuse of some peculiar, con- 
 fidential or fiduciary relationship Sec. 174, pp. 268-270 
 
 As to unconscientious or injurious dealings as to the rights of others. 
 
 Sec. 174a, p. 270 
 
 Cases illustrative of Sec. 175, pp. 270-272 
 
 Right to rescind for, must be exercised within a reasonable time. 
 
 Sec. 176, pp. 272, 273 
 
 Allegations of the bill to rescind instrument on the ground of 
 
 Sec. 177, pp. 273, 274 
 
 Relief against judgments and decrees on the ground of 
 
 Sec. 178, pp. 274, 27s 
 
 i Defenses to the charge of Sec. 179, pp. 275-277 
 
 When -written instruments will be canceled because of. .Sec. 48, pp. 88, 89 
 Of the evidence necessary to sustain the charge of. . .Sec. 180, pp. 277, 278 
 
 Of vendor in sale of real estate Sec 7, pp. 16, 17 
 
 Will cannot be canceled on ground of Sec. 48, p. 89 
 
 As ground of attachment Sec 38, pp. 57, 58, 63, 64 
 
 Fraudulent Conveyances — 
 Origin and history of the jurisdiction of courts in cases of. .Sec. 181, p. 280 
 
 Our present statute against, and its construction Sec. 182, pp. 280-283 
 
 Who may sue to set aside ■ Sec. 183, pp. 283, 284 
 
 Who should be parties defendant in suits to set aside 
 
 Sec. 184, pp. 284, 285 
 
 When courts will set aside deed as fraudulent Sec. 185, pp. 285, 286 
 
 Allegations of bill in suits to set aside Sec. 186, pp. 286-288 
 
 Proof of fraud in cases of Sec. 187, pp. 288, 289 
 
 Burden of proof in cases of Sec. 187, pp. 288, 289 
 
 Principles relating to the evidence in cases of Sec. 188, pp. 289-292 
 
 Badges of fraud in cases of Sec. 188, pp. 289-291 
 
 Declarations of grantor in cases of , Sec. 188, p. 291 
 
 Transactions between near relatives in cases of Sec. 188, p. 292 
 
 What conveyance fraudulent per se Sec. 189, pp. 292-295 
 
 Knowledge of grantee of grantor's fraudulent intent 
 
 •' Sec. 190, pp. 295, 296 
 
 Proof of consideration of the conveyance in cases of. .Sec. 191, pp. 296, 297 
 
 Voluntary conveyances, and when they may be assailed 
 
 Sec. 192, pp. 297-299 
 
 Conveyances made to the wife during coverture.' Sec. 193, p. 299 
 
 Improvements by husband upon wife's land Sec. 194, pp. 299, 300 
 
 As to ante-nuptial settlements Sec. 195, p. 300 
 
 As to post-nuptial settlements Sec. 196, pp. 300, 301 
 
 Agreements of separation between husband and wife 
 
 Sec. 196a, pp. 301-303 
 
 When conveyance will stand as indemnity for consideration ad- 
 vanced by grantee, although set aside Sec. 197, p. 303 
 
 As to purchasers from fraudiilent grantor .Sec. 198, pp. 303, 304 
 
INDBX. 8ll 
 
 Fraudulent Conveyances— 0«ft««^rf. 
 
 As to purchasers from fraudulent grantee Sec. 198, pp. 303, 304 
 
 Lien acquired by suit to set aside See. 199, pp. 304, 305 
 
 As to preference among creditors of an insolvent. . . .Sec. 200, pp. 305, 306 
 When instrument creating preference must be assailed 
 
 „ ; Sec. 201, pp. 306, 307 
 
 Transactions to which statute forbidding preferences does not 
 
 *PP^y • • • • ; Sec. 202, p. 307 
 
 Effect and policy of law forbidding preferences among creditors. 
 
 Sec. 203, pp. 307-309, 
 
 Garnishee — 
 
 Of the, in attachment Sec. 42, pp. 71-75 
 
 How one may be suggested as, in attachment Sec. 42, p. 71 
 
 How process may be served on Sec. 42 p. 71 
 
 When process against, must be returnable Sec. 42, p. 71 
 
 Usual to make the, party defendant to the suit Sec. 42, p. 71 
 
 How the, discloses his liability in equity Sec. 42, pp. 71, 72 
 
 May make defense to the suit of the plaintiff Sec. 42, p. 72 
 
 When bill may be taken for confessed as to Sec. 42, p. 72 
 
 Effect of service of process upon the garnishee Sec. 42, p. 72 
 
 Who may be held as a Sec. 42, pp. 72-74 
 
 Who may not be held as a Sec. 42, pp. 73, 74 
 
 When a decree may be rendered against the Sec. 42, p. 74 
 
 Effect of decree against a Sec. 42, p. 75 
 
 When plaintiff can recover against, in attachment ^Sec. 42, p. 72 
 
 Gift- 
 Essentials of a valid Sec. 204, pp. 310, 311 
 
 Of two kinds, causa mortis and inter vivos. , Sec. 204, p. 310 
 
 The delivery of the subject-matter of Sec. 205, p. 311 
 
 Constructive delivery of Sec. 206, pp. 311, 312 
 
 Actual delivery of Sec. 206, p. 311 
 
 Promissory notes, checks and the like, as the subjects of 
 
 Sec. 207, pp. 312, 313 
 
 Causa mortis, essential conditions of Sec. 208, pp. 313, 314 
 
 Between near relatives and to fiduciaries Sec. 209, pp. 314, 315 
 
 What constitutes possession of, by donee Sec. 210, pp. 315, 316 
 
 The evidence required to establish a Sec. 211, pp. 316, 317 
 
 When equity will aid in rendering effective Sec. 212, p. 317 
 
 What is the actual delivery of a Sec. 206, p. 311 
 
 What is constructive delivery of a Sec. 206, pp. 311, 312 
 
 What constitutes a sufficient delivery of a Sec. 206, p. 312 
 
 Not essential that delivery be to donee Sec. 206, p. 312 
 
 Anything may be the subject of a Sec. 207, pp. 312, 313 
 
 A, causa mortis, must be in contemplation of death Sec. 208, p. 313 
 
 A, causa mortis, must be with present interest Sec. 208, p. 314 
 
 To a, causa mortis, death of donor essential Sec. 208, p. 314 
 
 As to possession of , where donor and donee reside tq^ether.. Sec. 210, p. 315 
 When, presumed to be an advancement Sec. 174, p. 269 
 
8l2 INDEX. 
 
 Guardian — 
 
 Who may appoint by will Sec. 216, p. 32^ 
 
 Testamentary Sec. 216, p. 321 
 
 What court may appoint Sec. 216, p. 322 
 
 When clerk may appoint Sec. 216, p. 322 
 
 Bond of Sec. 216, pp. 322, 323 
 
 Term of office of Sec. 216, p. 323 
 
 Investment by, of ward's estate Sec. 217, 323, 324 
 
 Entitled to custody of ward Sec. 218, p. 324 
 
 Entitled to possession and care and management of ward's estate. . 
 
 Sec. 218, pp. 324-327 
 
 Powers and duties of Sec. 218, pp. 326, 327 
 
 May lease or sell lands of ward Sec. 124, pp. 207-211 
 
 May make sale by bill in equity of ward's land Sec. 124, pp. 207, 208 
 
 May submit matters to arbitration Sec. 34, p. 47 
 
 May sell ward's land by petition Sec. 124, p. 208 
 
 Course to be pursued by, in sale of ward's land Sec. 124, pp. 209, 210 
 
 Cannot purchase at sale of ward's land Sec. 124, p. 210 
 
 Investment of proceeds of sale of ward's land Sec. 125, p. 211 
 
 Confirmation of sale of ward's land, effect of Sec. 126, p. 212 
 
 Transfer of property of, to another state or country. .Sec. 127, pp. 212-214 
 
 Suit against, and his sureties on his bond Sec. 392, p. 523 
 
 Disbursements allowed to, in dealings with ward Sec. 219, pp. 327-330 
 
 Keeping and stating the accounts of Sec. 220, pp. 330-333 
 
 The compensation of Sec. 221, p. 333 
 
 Personal liability of Sec. 222, pp. 333, 334 
 
 Jurisdiction in equity over accounts and dealings of. .Sec. 223, pp. 334, 335 
 
 Transactions between, and ward Sec. 174, p. 269 
 
 Surcharging and falsifying the accounts and settlements of. .Sec. 224, p. 335 
 
 Termination of the office of Sec. 225, pp. 335-337 
 
 Liability of, for waste Sec. 225, p. 336 
 
 Settlement with ward at end of guardianship Sec. 225, p. 336 
 
 Has thirty days to invest ward's property Sec. 217, p. 323 
 
 When and how chargeable with interest Sees. 217, 220, pp. 223, 331 
 
 Extent of power' and control over person of ward. . .Sec. 218, pp. 324, 325 
 When may maintain suit for ward's property, and how 
 
 Sec. 218, pp. 325, 326 
 
 Obvious and conceded powers of, enumerated , Sec. 218, p. 326 
 
 In whose name suit by, should be brought Sec. 218, p. 326 
 
 May sell ward's property, when Sec. 218, pp. 326, 327 
 
 As to liability for debts lost by him Sec. 218, p. 327 
 
 Not liable for acts prudently done Sec. 218, p. 327 
 
 Not allowed to spend principal of ward's estate, when.. Sec. 219, pp. 327, 328 
 
 May spend income of Sec. 219, p. 328 
 
 When allowed to -spend principal of ward's estate. . .Sec. 219, pp. 327-330 
 Extent of expenditures allowed to father of child when acting as 
 
 its guardian : .Sec. 219, p. 329 
 
 Extent of expenditures when mother acting as Sec. 219, p. 329 
 
INDBX. 813 
 
 Guardian — Continued. 
 
 Must make inventory of ward's estate Sec. 220, p. 330 
 
 How inventory should be made and what it must show Sec. 220, p. 330 
 
 Should keep accounts of different wards separate Sec. 220, p. 331 
 
 The way his accounts should be made out Sec. 220, pp. 331, 332 
 
 When chargeable with compound interest Sec. 220, p. 332 
 
 Husband and Wife. (See CURTESY, DowER, Fraubuxent Convey- 
 ance, Married Women, Divorce.) 
 
 Curtesy of husband in wife's lands Sec. 79, pp. 121-123 
 
 Curtesy of husband at common law Sec. 79, p. 121 
 
 Curtesy of husband tmder the statute Sec. 79, p. 121 
 
 In what lands of wife husband entitled to curtesy. . . Sec. 79, pp. 122, 123 
 How husband barred of his curtesy in wife's lauds. . .Sec. 80, pp. 123, 124 
 
 Wife's dower in lands of husband Sees. 81-90, pp. 125-134 
 
 Conveyance to wife by husband during coverture Sec. 193, p. 299 
 
 Improvements made on wife's land by husband during coverture . . . 
 
 Sec. 194, pp. 299, 300 
 
 Antenuptial settlements between Sec. 195, p. 300 
 
 Postnuptial settlements between Sec. 196, pp. 300, 301 
 
 Agreements of separation between Sec. 196a, pp. 301-303 
 
 At common law, husband entitled to wife's personalty. . . .Sec. 306, p. 426 
 
 Contracts between Sec. 307a, p. 430 
 
 Wife may employ husband Sec. 307a, p. 430 
 
 Marriage settlement deeds between Sec. 312, p. 436 
 
 Marriage settlement does not deprive them of their marital rights, 
 
 when Sec. 312, p. 436 
 
 Improvements — 
 
 Made upon land by occupier under claim of title, how value of, es- 
 timated Sec. 320, p. 447 
 
 Made by husband on wife's land Sec. 194, pp. 299, 300 
 
 Inadequacy of Consideration — 
 
 As ground of canceling contracts Sec. 51, pp. 90-92 
 
 Must be such as to justify presumption of fraud, to cancel contract, 
 
 Sec. 51, p. 91 
 
 Must exist at date of instrument Sec. 51, p. 91 
 
 Where, is accompanied by inequitable incidents Sec. 51, p. 91 
 
 Infancy. (See Infants.) 
 
 Cancellation of contracts and agreements because of Sec. 58, p. 99 
 
 When infant may avoid his contract Sec. 58, p. 99 
 
 What contract binding on infant Sec. 58, p. 99 
 
 What contract absolutely void because of Sec. 58, p. 99 
 
 Infants. (See Infancy. ) 
 
 Jurisdiction in equity as to Sec. 226, p. 338 
 
 Power of, to make contracts Sec. 227, pp. 338, 339 
 
 What are necessaries with reference to Sec. 228, p. 339 
 
 As to the disabiUties of Sec. 229, pp. 339, 340 
 
 How and when, may set aside decree Sec. 230, p. 340 
 
 Emancipation of, by parent Sec. 230a, pp. 34i> 342 
 
8l4 INDEX. 
 
 Infants — Continued. 
 
 Not subject to law of estoppel, when Sec. 103, pp. 151-153 
 
 Cannot claim estoppel against adult Sec. 103, p. 152 
 
 Bound by judgment of court, when Sec. 103, p. 153 
 
 Subject to law of estoppel, when Sec. 103, p. 153 
 
 As to setting aside sales made by Sec. 103, p. 153 
 
 Investment of proceeds of sale of land of Sec. 125, p. 211 
 
 Cannot waive their rights in suit Sec. 229, p. 340 
 
 May consent to entry of decree, when Sec. 229, p. 340 
 
 Judgment or decree must be rendered against, on proof Sec. 229, p. 340 
 
 Effect of emancipation of Sec. 230a, p. 341 
 
 When earnings of, do not belong to parents Sec. 230a, p. 341 
 
 Injunctions — 
 
 Definition and classification of Sec. 231, pp. 344, 345 
 
 When mandatory will be issued Sec. 232, pp. 345, 346 
 
 Principles underlying jurisdiction in cases of Sec. 233, pp. 347, 348 
 
 Classes of cases wherein relief may be afforded by Sec. 234, p. 348 
 
 To prevent irreparable wrong Sec. 235, pp. 348, 349 
 
 To restrain waste Sec. 236, pp. 349, 350 
 
 Who may maintain, against commission of waste Sec. 237, pp. 350, 351 
 
 Definition of waste Sec. 237, p. 350 
 
 Distinction between waste and trespass, as applicable to. . .Sec. 238, p. 351 
 
 Cases wherein, will be awarded to stay waste Sec. 239, pp. 352, 353 
 
 To prevent trespasses Sec. 240, pp. 354, 355 
 
 What bill must allege, to obtain, against trespasses Sec. 241, p. 355 
 
 Cases wherein, to trespass will lie Sec. 242, pp. 355, 356 
 
 To prevent nuisances Sec. 243, p. 356 
 
 Definition and kinds of nuisances Sec. 244, pp. 356, 357 
 
 Against private nuisances Sec. 245, pp. 357, 358 
 
 Cases wherein, to restrain nuisances has been awarded 
 
 Sec. 246, pp. 358, 359 
 
 To enjoin sales under executions Sec. 247, pp. 360, 361 
 
 Enjoining trust sales Sec. 248, p. 361 
 
 Power of trustee under deed of trust Sec. 249, pp. 361-363 
 
 Specific cases illustrating use of, to prevent sales under trust deeds, 
 
 Sec. 250, pp. 363, 364 
 
 To restrain infringements of patents and copyrights Sec. 251, p. 364 
 
 When preliminary, will be granted to restrain infringements of 
 
 patents and cop3nights Sec. 252, p. 365 
 
 When previous trial at law necessary before awarding, to restrain 
 
 infringements of patents and copyrights Sec. 253, pp. 365, 366 
 
 Will not be granted after patent has expired and infringement 
 
 ceased, when Sec. 254, p. 366 
 
 In cases of municipal corporations Sec. 255, p. 367 
 
 Enjoining municipal ordinances Sec. 256, pp. 367, 368 
 
 To prevent creation of illegal indebtedness by municipal corpora- 
 tions Sec. 257, pp. 368, 369 
 
 When municipality may resort to the use of Sec. 258, pp. 369, 370 
 
INDEX. 815 
 
 Injunctions — Continued. 
 
 , In cases of sureties Sec. 259, p. 370 
 
 When equity will indemnify surety against principal 
 
 • Sec. 260, pp. 370, 371 
 
 In cases of partners Sec. 261, p. 371 
 
 Cases wherein, will or will not be allowed, by or against partners. . 
 
 • Sec. 262, p. 372 
 
 To restrain the collection of illegal taxes Sec. 263, p. 372-374 
 
 To restrain the taking of private property for public use 
 
 Sec. 264, pp. 374, 375 
 
 Against towns as to taking land for streets and sidewalks. .Sec. 265, p. 375 
 Against railroad companies for appropriating land to right of way, 
 
 Sec. 266, p. 376 
 
 When court wiU award issue to determine the quantum of damages 
 
 when land has been taken Sec. 267, pp. 376, 377 
 
 The restrain the enforcement of judgments and decrees 
 
 Sec. 268, p. 377, 378 
 
 To judgments because of after-discovered evidence. .Sec. 269, pp. 378, 379 
 
 To judgments in cases wherein no appeal can be taken Sec. 270, p. 379 
 
 Cases illustrating use of, enjoining judgments Sec. 271, pp. 379, 380 
 
 Against decrees in chancery Sec. 272, p. 380 
 
 To enjoin the prosecution of action at law Sec. 273, pp. 381, 382 
 
 As to equitable legal defenses Sec. 274, p. 382 
 
 To prevent a multiplicity of suits Sec. 275, p. 383 
 
 Cases wherein equity will interpose to prevent multiplicity of suits, 
 
 Sec. 276, p. 383 
 
 To enjoin an action or proceeding to make set-off available 
 
 Sec. 277, p. 384 
 
 As to trades unions and strikes Sec. 278, pp. 384-387 
 
 As to boycotts Sec. 279, pp. 387-389 
 
 Illustrative cases of the use and refusal of Sec. 280, pp. 389, 390 
 
 When and by whom, may be awarded Sec. 281, pp. 390, 391 
 
 When, to take effect Sec. 282, pp. 391, 392 
 
 Motions to dissolve Sec. 283, p. 392 
 
 When will be dissolved Sec. 284, pp. 392-394 
 
 Of the effect of the dissolution of Sec. 285, p. 394 
 
 In cases of new trials Sec. 355, p. 478 
 
 insane Person — 
 
 Committee of,. when appointed Sec. 121, pp. 202, 203 
 
 Committee of, appointed by circuit or county court Sec. 121, p. 202 
 
 Notice required for appointment of committee of Sec. 121, p. 202 
 
 How appointment of committee of, inquired into Sec. 121, p. 202 
 
 When appointment of committee of, cannot be impeached 
 
 Sec. 121, p. 203 
 
 Meaning of the phrase "insane person" Sec. 121, p. 203 
 
 Bond and qualification of committee of Sec. 122, pp. 203, 204 
 
 Legal effect of a judicial finding of lunacy Sec. 122a, pp. 204, 205 
 
 Powers of the committee of Sec. 123, pp. 205-207 
 
8l6 INDEX. 
 
 Insane Person — Continued. 
 Entitled to custody and control of person and estate of, by com- 
 mittee of Sec. 123, p. 205 
 
 Suits by committee of Sec. 123, pp. .205, 206 
 
 Suit by committee of, to set aside deed or other contract of 
 
 Sec. 123, p. 205 
 
 When deed or contract of, will not be set aside Sec. 123, p. 205 
 
 Committee of, may sell land of, wlien Sec. 123, pp. 206, 207 
 
 Committee of, may lease or mortgage land of, when and how 
 
 ,. Sec. 123, pp. 206-208 
 
 Course to be pursued by committee of, in sale of land of 
 
 Sec. 124, pp. 209-211 
 
 Committee of, cannot purchase land of Sec. 124, p. 210 
 
 Sale of land of, by committee of, in summary way Sec. 124, p. 210 
 
 Application and investment of proceeds arising from sale of prop- 
 erty of Sec. 125, pp. 211, 212 
 
 Effect of sale and confirmation of property belonging to. .Sec. 126, p. 212 
 
 Transfer of property belonging to, to another state or country 
 
 Sec. 127, pp. 212-214 
 
 Committee of cannot resign when Sec. 129, p. 214 
 
 Cannot make valid contract Sec. 55, pp. 96, 97 
 
 Insanity. (See Mentai, Incapacity.) 
 
 Cancellation of instrument because of Sec, 55, pp. 96, 97 
 
 What the word, embraces Sec. 55, p. 96 
 
 Includes idiot, lunatic and every one non compos Sec. 55, p. 96 
 
 Definition of idiot Sec. 55, p. 96 
 
 Definition of lunatic Sec. 55, p. 96 
 
 Definition of non compos Sec. 55, p. 96 
 
 Definition of senile dementia Sec. 55, p. 96 
 
 Person laboring under, cannot make valid contract. Sec. 55, p. 96 
 
 When instruments made by one laboring under, will be canceled, 
 
 Sec. 55, pp. 96, 97 
 
 Instrument will be canceled on ground of, without restoration of 
 
 consideration, when Sec. 60, p. loi 
 
 When presumed and when not Sec. 56, p. 97 
 
 Insolvent Debtor. (See CrEBITORS.) 
 
 Statute forbidding an, to prefer his creditors Sec. 182, pp. 281, 282 
 
 In absence of statute an, may prefer his creditors Sec. 200, p. 305 
 
 Meaning of the word "insolvent" Sec. 200, p. 305 
 
 Mere fact of insolvency forbids preference Sec. 200, p. 305 
 
 To what property statute forbidding an, to prefer his creditors, ap- 
 plies Sec. 200, pp. 305, 306 
 
 When instrument creating preference among creditors of an, must 
 
 be assailed Sec. 201, pp. 306, 307 
 
 Transactions to which statute forbidding preference among cred- 
 itors of an, does not apply Sec. 202, p. 307 
 
 Effect and policy of law forbidding a preference among the cred- 
 itors of an Sec. 203, pp. 307-309. 
 
INDEX. 817 
 
 Interest — 
 How interest to be charged to personal representative 
 
 Sec. 114, pp. 180, i8i 
 
 On legacy payable one year after death of testator as a rule 
 
 Sec. 115a, pp. 182-184 
 
 When, on legacy payable from death of testator Sec. n$a., p. 184 
 
 On legacy when time of payment is fixed Sec. 115a, p. 185 
 
 To be charged against fiduciaries in the settlement of their accounts, 
 
 Sees. 152, 153, pp. 241, 244, 245 
 
 Compound, when to be charged against fiduciaries Sec. 153, p. 245 
 
 What the legal rate of Sec. 418! p. 564 
 
 What law governs as to Sec. 422, p. 560 
 
 How computed in cases of partial payment Sec. 423, p. 567 
 
 Application of usurious Sec. 624, p. 567 
 
 Payment of usurious, may be recovered back and how Sec. 426, p. 569 
 
 Calculation of, in entry of decree Sec. 428, p. 570 
 
 To be charged on advancements, brought into hotchpot 
 
 Sec. 214, pp. 318, 319 
 
 On purchase-money on sale of land Sec. 410, p. 551 
 
 'rventory — 
 
 To be returned to clerk Sec. 150, pp. 239, 240 
 
 Of sales made by fiduciaries Sec. 151, pp. 240, 241 
 
 Irreparable Injury or Wrong. (See Injunctions.) 
 
 Injunctions to prevent Sec. 235, pp. 348, 349 
 
 Must be shown to obtain injunction against trespass Sec. 241, p. 355 
 
 Joint Obligors- 
 Contribution among Sec. 70, p. no 
 
 Judgments and Decrees — 
 
 As to the form of Sec. 286, pp. 395, 396 
 
 Are interlocutory or final Sec. 286, p. 396 
 
 What are interlocutory Sec. 287, pp. 396, 397 
 
 What are final Sec. 287, pp. 396-399 
 
 The diflFerent kinds of final Sec. 287, p. 397 
 
 Effect of interlocutory and final decrees Sec. 287, p. 398 
 
 When decree may be entered in a cause Sec. 288, pp. 399, 400 
 
 When decree between co-defendants may be entered Sec. 289, p. 400 
 
 When will be set aside Sec. 290, pp. 401, 402 
 
 Relief against, on ground of fraud Sees. 178, 351, pp. 274, 275, 473 
 
 When an infant may set aside Sec. 230, p. 340 
 
 When injunction will be awarded to restrain enforcement of 
 
 • Sec. 268, pp. 377, 378 
 
 Injtmction to, because of after-discovered evidence. .Sec. 269, pp. 378, 379 
 
 Injimctions to, where no appeal ^ies Sec. 270, p. 379 
 
 Cases illustrating the use of injunctions enjoining. ..Sec. 271, pp. 379, 380 
 
 Lien of judgment upon debtor's real estate Sec. 460, pp. 615, 616 
 
 Limitation of the right to enforce judgment lien Sec. 463, pp. 620, 621 
 
 52 
 
8l8 INDEX. 
 
 Judgments and Decrees — Continued. 
 
 As to priority of judgment liens ■ Sec. 464, pp. 621, 622 
 
 Docketing, and effect thereof Sec. 461, pp. (5i6-6i8 
 
 Judicial Sales — 
 
 Rule of caveat emptor applies to Sec. 291, pp. 403, 404 
 
 When will be set aside Sec. 292, pp. 404-406 
 
 Rights and obligations of purchasers at Sec. 293, pp. 406-409 
 
 Upset bids with reference to Sec. 294, pp. 409, 410 
 
 What constitutes bids at Sec. 295, p. 410 
 
 Withdrawing, rejecting and assigning bids made at. .Sec. 296, pp. 410-412 
 
 Terms of Sec. 297, pp. 412-414 
 
 When may or may not be for cash Sec. 297, p. 412 
 
 Setting aside, in discretion of court Sec. 292, p. 404 
 
 Instances wherein courts have set aside Sec. 292, pp. 405, 406 
 
 Inchoate rights of purchasers at Sec. ag^ o. 406 
 
 When setting aside decree will not affect title of purchaser at 
 
 Sec. 293, p. 406 
 
 Reversal of decree of sale, effect of as to title of purchasers at 
 
 Sec. 293, p. 407 
 
 DisaflBrmance of void, purchaser placed in statu quo Sec. 293, j,. 407 
 
 Owner entitled to rents before confirmation of Sec. 293, p. 408 
 
 What to be done when purchasers fail to complete purchase at 
 
 Sec. 293, p. 408 
 
 When purchasers neglect to comply with terms of Sec. 293, p. 408 
 
 No fixed rule as to amount of upset bids at Sec. 294, p. 409 
 
 Mode of offering upset bids at Sec. 294, p. 410 
 
 When officer may refuse to entertain bid at Sec. 296, p. 411 
 
 When no sale or assignment of bid at, can be made Sec. 296, p. 411 
 
 Will not be set aside at instance of one who did not bid at, because 
 
 of contract not to do so Sec. 324, p. 450 
 
 Jurisdiction. (See EQUITY.) 
 
 Must be as to rights of property only Sec. 3, p. 4 
 
 Principles upon which equity jurisdiction is based Sec. 3, p. 4-6 
 
 No, as to matters purely criminal Sec. 3, p. 6 
 
 No, as to matters purely political Sec. 3, p. 6 
 
 No, as to claims to public office Sec. 3, p. 6 
 
 As to unliquidated damages Sec. 3, p. 6 
 
 As to concurrent and exclusive Sec. 3, pp. 6-8 
 
 Classification of equity jurisdiction Sec. 4, pp. 8, 9 
 
 Concurrent, most comprehensive branch of Sec. 5, p. 10 
 
 Arranged alphabetically Sec. 5, p. lo 
 
 Rules of chancery, fixed and certain Sec. i, p. 2 
 
 Origin of chancery Sec. i, p. 1-3 
 
 Upon what founded in matters of cancellation Sec. 45^ pp. 79, 80 
 
 As to dispute of boundaries Sec. 62, p. 104 
 
 As to matters of fraud Sec. 167, pp. 257, 258 
 
 Of equity as to accounts and dealings of guardians. ..Sec. 223, pp. 334, 3,-^5 
 Principles underlying, of court in cases of injunction.. Sec. 233, pp. 347, 34.3 
 
INDEX. 819 
 
 Jurisdiction — Continued. 
 
 Absence of precedent does not defeat equity Sec. 319, p. 446 
 
 When equity takes, for one purpose ■will retain for all purposes. 
 
 Sees. 319, 350a, pp. 446, 470, 471 
 
 Equity -will not take, of matters imposing a mere moral obligation. 
 
 • Sec. 319, pp. 446, 447 
 
 Conferred by statute does not take equity away, when 
 
 Sees. 4, 15, pp. 8, 24 
 
 Jury, Trial by — 
 
 In a court of equity Sec. 430a, p. 573 
 
 Instances wherein, is awarded Sees. 430a, 443, pp. 573-576 
 
 Laborer's Lien. (See LiSNS.) 
 
 Origin of and how created Sec. 521, pp. 703, 704 
 
 The extent and character of Sec. 522, p. 704 
 
 Lachea — 
 
 Definition of Sec. 298, p. 415 
 
 Rules determining the application of Sec. 298, pp. 416, 417 
 
 When not imputable Sec. 299, p. 418 
 
 How defense of may be raised Sec. 300, pp. 418, 419 
 
 Bill may show due excuse for plaintiff's Sec. 300a, pp. 419, 420 
 
 As a defense to suits for cancellation of written instruments 
 
 Sec. 61, pp. 101-103 
 
 May bar smt to surcharge and falsify accounts of fiduciaries 
 
 Sees. 119, 160, pp. 197, 252, 253 
 
 As a defense to the charge of fraud Sec. 179, pp. 276, 277 
 
 Must not be guilty of, in suits to be relieved of fraudulent act 
 
 Sec. 176, pp. 272, 273 
 
 Instances wherein, constitute defenses to suit Sec. 298, p. 417 
 
 As a defense to suits for specific performance Sec. 409, pp. 549, 550 
 
 As a defense to the enforcement of a vendor's lien .Sec. 527, p. 709 
 
 As a defense to the enforcement of a constructive trust Sec. 556, p. 747 
 
 Legacies. (See ExEctrroRs and Administrators, and Personai, Repre- 
 sentatives.) 
 
 Payment of, by personal representative Sec. 115, pp. 181, 182 
 
 Time when payable Sec. 115, p. 181 
 
 When personal representative not compelled to pay Sec. 115, p. 181 
 
 Personal representative cannot recover back, voluntarily paid by 
 
 him, when Sec. 115, pp. 181, 182 
 
 Effect of overpayment of Sec. 115, p. 182 
 
 As to the payment of interest on Sec. 115a, pp. 182-185 
 
 Time from which, draw interest, as a rule Sec. iisa, p. 182 
 
 When, draw interest from death of testator Sec. 115a, p. 184 
 
 Interest on, when time certain for payment is fixed Sec. 115a, p. 185 
 
 As to suits for the recovery of Sec. 115a, p. 185 
 
 The different kinds of Sec. 116, p. i86 
 
 What are general Sec. 116, p. 186 
 
 What are demonstrative Sec. ir6, p. 186 
 
 What are specific Sec. 116, p. 186 
 
820 INDEX. 
 
 Legacies — Continued. 
 
 Are absolute or conditional. Sec. ii6, p. 187 
 
 What are absolute; what conditional Sec. 116, p. 187 
 
 When legacies vest Sec. 116, p. 187 
 
 Distinction between general and specific • Sec. 116, p. 187 
 
 When advancement will be taken as a discharge of Sec. 116, p. i88 
 
 When real estate charged with payment of Sec. ii6a, pp. 188-190 
 
 The fund primarily liable for the pajrment of Sec. Ii6a, p. 188 
 
 When real estate not chargeable with the pajrment of 
 
 Sec. ri6a, pp. 188, 189 
 
 When issue of legatee takes the Sec. Ii6a, p. 189 
 
 Statutory mode of compelling the payment of Sec. ii6a, p. 189, 190 
 
 When, may be preserved by suit in equity Sec. ii6a, p. 190 
 
 Legatee — 
 
 When, cannot share in residuum of testator's estate Sec. ii5, p. 188 
 
 Cannot obtain legacy when he has killed the testator Sec. 332, p. 458 
 
 Contribution among Sec. 71, pp. no, in 
 
 Liens — 
 
 Mechanics' lien, origin, nature, and definition of. . . .Sec. 514, pp. 687, 688 
 
 Who may claim a mechanics' Sec. 515, pp. 688, 690 
 
 Corporation may claim mechanics' Sec. 515, p. 690 
 
 Against what persons a mechanics' may be asserted. .Sec. 516, pp. 690-693 
 
 Mechanics' must be against owner of property Sec. 516, p. 690 
 
 Who is owner of property under mechanics' lien law Sec. 516, p. 690 
 
 Mortgagor in possession treated as owner Sec. 516, t>. 691 
 
 Where land is owned by two or more persons Sec. 516, p. 691 
 
 When can be no mechanics', against married woman Sec. 516, p. 691 
 
 Can be no mechanics', against minors Sec. 516, p. 692 
 
 Private corporations subject to mechanics' Sec. 516, p. 692 
 
 Mechanics', against lessee in possession of land Sec. 516, p. 692 
 
 To what property a mechanics', will attach Sec. 516a, pp. 693-697 
 
 As to whether property of railroad subject to mechanics' 
 
 Sec. 516a, pp. 695, 696 
 
 How mechanics', is created Sec. 517, pp. 697-699 
 
 Essential requisites to creation of mechanics' Sec. 517, p. 697 
 
 Can be no mechanics', in absence of contract Sec. 517, pp. 697, 698 
 
 Account to be filed for mechanics' Sec. 517, p. 698 
 
 Requisites of the account for a mechanics' Sec. 517, p. 699 
 
 The account must be itemized for mechanics' Sec. 518, p. 699 
 
 The property must be described in account for mechanics'. .S,ec. 518, p. 699 
 Name of owner must be stated in account for mechanics'... Sec. 518, p. 700 
 
 How and by whom a mechanics', may be enforced Sec. 519, p. 701 
 
 What should be averred in bill to enforce mechanics' 
 
 Sec. 520, pp. 702, 703 
 
 Laborers', origin of and how created Sec. 521, pp. 703, 704 
 
 The extent and character of laborers' Sec. 522, p. 704 
 
 Vendor's, on sale of real estate Sec. 523, pp. 705, 706 
 
 Vendor's, must be reserved on face of deed Sec. 523, p. 705 
 
INDBX. 821 
 
 Liens — Continued. 
 
 Description of debt in deed reserving, on face of Sec. 523, p. 705 
 
 Vendor of personalty no implied lien, when Sec. 523, p. 706 
 
 Of vendor on sale of land by executory contract Sec. 523, p. 706 
 
 Vendor's equitable, on sale of real estate Sec. 524, pp. 706, 707 
 
 Release or waiver of the vendor's Sec. 525, pp. 707, 708 
 
 Of vendor on sale of equitable title Sec. 526, p. 708 
 
 Time in which vendor's, may be enforced Sec. 527, pp. 708, 709 
 
 Bill to enforce vendors' ; Sec. 528, pp. 709, 710 
 
 Decree in suits to enforce vendors' Sec. 529, pp. 710, 71 1 
 
 Defense to suits to enforce vendors' Sec. 529, pp. 710, 711 
 
 The statutory, upon domestic steamers Sec. 530, p. 711 
 
 Where statutory, upon domestic steamers must be enforced.Sec. 530, p. 711 
 Acquired on property of fraudulent debtor by creditor assailing con- 
 veyance of same Sec. 199, pp. 304, 305 
 
 Of judgment upon debtor's real estate Sec. 460, pp. 415, 416 
 
 Lis pendens. (See NOTICE and RECORDATION, and Recordation of In- 
 struments.) 
 
 The statute with reference to Sec. 366, pp. 490, 491 
 
 The statute does not affect the common law as to Sec. 366, p. 491 
 
 To what proceedings, is applied Sec. 366, p. 491 
 
 Must relate to some sort of previous lien Sec. 366, p. 491 
 
 Does not relate to property specifically sued for., Sec. 366, pp. 491, 492 
 
 When suit is pending for the purpose of a Sec. 366, p. 492 
 
 Lost Instruments — 
 
 Jurisdiction of equity in cases of Sec. 301, p. 421 
 
 Original ground of jurisdiction in cases of Sec. 301, p. 421 
 
 Jurisdiction in cases of, extends to all classes of Sec. 301, p. 421 
 
 What bill must state in cases of Sec. 302, p. 422 
 
 What must be shown to maintain suits on Sec. 303, p. 422 
 
 Suits on lost negotiable intruments Sec. 304, pp. 422, 423 
 
 Equity will set up a lost will Sec. 305, p. 423 
 
 Mandatory Injunction — 
 
 Definition of a Sec. 231, p. 344 
 
 When a, will be issued Sec. 232, p. 345 
 
 Rarely granted before final hearing Sec. 232, p. 345 
 
 Will issue, to compel restoration of street or highway to former 
 
 state Sec. 232, p. 345 
 
 Instances wherein a, will issue stated Sec. 232, p. 346 
 
 Marriage — 
 
 Annulment of, and when decreed Sec. 446, p 
 
 Every presumption is made in favor of the legality of Sec. 446, p, 
 
 When person cannot have, annulled Sec. 446, p 
 
 When person can have, annulled Sec. 446, pp. 595 
 
 As to jurisdiction to annul Sec. 447, p 
 
 As to a decree for annulment of Sec. 448, PP- 59^ 
 
 Suits to aflarm • Sec. 449. P 
 
 594 
 595 
 595 
 596 
 596 
 597 
 597 
 
822 INDEX. 
 
 Marriage Contract — 
 Antenuptial, in bar of dower Sec. 96, pp. 138, 139 
 
 Married Women — 
 
 Separate property of, how created, and nature thereof 
 
 Sec. 306, pp. 424-427 
 
 Contracts of Sec. 307, pp. 427-430 
 
 Contracts between husband and wife Sec. 307a, pp. 430, 431 
 
 The earnings of Sec. 308, p. 431 
 
 Carrying on business by Sec. 309, pp. 431-434 
 
 Insurance of, on life of husband Sec. 310, pp. 434, 435 
 
 Patents for inventions of Sec. 310, pp. 434, 435 
 
 Bank deposits of '. . .Sec. 310, pp. 434, 435 
 
 Property held in trust for Sec. 311, pp. 435, 436 
 
 Marriage settlement deeds Sec. 312, p. 436 
 
 Right of, to dispose of property Sec. 313, pp. 436-43S 
 
 Suits by and against . .'. Sec. 314, pp. 438, 439 
 
 Law of estoppel applies to, when Sec. 102, pp. 145-148 
 
 Estoppel cannot be imputed to; in absence of full power to act 
 
 Sec. 102, p. 149 
 
 Cannot be barred of title to real estate, by estoppel Sec. 102, p. 151 
 
 No particular form necessary to create separate estate of. . .Sec. 306, p. 426 
 
 Separate estate of, now a legal estate Sec. 306, p, 427 
 
 Must have separate estate to make contract Sec. 307, pp. 427, 428 
 
 Debts for which separate estate of, liable Sec. 307, p. 428 
 
 Not entitled to compensation for domestic services Sec. 308, p. 431 
 
 May engage in business on their own account Sec. 309, pp. 433, 434 
 
 Cannot dispose of realty except by deed with a joinder of the hus- 
 band therein Sec. 313, pp. 436, 437 
 
 Deed of, living separate and apart from husband, how made 
 
 Sec. 313, p. 437 
 
 Judgment against, and effect thereof Sec. 314, pp. 438, 439 
 
 Contract of, with husband, and how enforceable Sec. 307a, p. 430 
 
 May employ and pay husband a salary Sec. 307a, p. 430 
 
 When suable at common law Sec. 314, p. 438 
 
 When judgment against, void Sec. 314, p. 438 
 
 When, must be sued in equity Sec. 314, p. 438 
 
 When, may or may not be sued alone Sec. 314, p. 439 
 
 Marshaling of Assets and Securities — 
 
 What is meant by Sec. 315, p 440 
 
 The limitation of the doctrine of Sec. 316, p. 441 
 
 Instances wherein the doctrine of, is applied Sec. 317, pp. 441-445 
 
 Where a creditor has a lien on two funds, and a subsequent credi- 
 tor a lien on but one Sec. 315, p. 440 
 
 Doctrine of, not enforced to prejudice of third party Sec. 316, p. 441 
 
 Will not be applied so as to delay creditor Sec. 316, p. 441 
 
 As to individual and partnership creditors Sec. 317, p. 441 
 
 As to mortgagees of land when one has other and additional se- 
 curity Sec. 317, p. 442 
 
INDBX. 823 
 
 Marshaling of Assets and Securities — Continued. 
 Where mortgagee holds two pieces of property and a subsequent 
 
 mortgagee one of them Sec. 317, p. 442 
 
 When principal and surety have mortgaged their property to secure 
 
 same debt Sec. 317, p. 442 
 
 When party has released part of his lien Sec. 317, p. 442 
 
 As among cosureties Sec. 317, p. 442 
 
 As to indorsed and unindorsed notes Sec. 317, p. 442 
 
 As to legatees Sec. 317, p. 443 
 
 Aa to alienation of land by owner incumbered with liens. .Sec. 317, p. 443 
 Maxims — 
 
 The extent and classification of Sec. 318, pp. 444, 445 
 
 Equity will not by reason of a merely technical defect suffer a wrong 
 
 to be without a remedy Sec. 319, pp. 446, 447 
 
 Consideration and meaning of this maxim Sec. 319, pp. 445-447 
 
 Equity follows the law Sec. 320, p. 447 
 
 Extent and meaning of this maxim Sec. 320, p. 447 
 
 Where there are equal equities, first in time will prevail 
 
 Sec. 321, pp. 447, 448 
 
 Meaning of this maxim Sec. 321, pp. 447, 448 
 
 Where there is equal equity the law must prevail Sec. 322, pp. 448, 449 
 
 Meaning of this maxim Sec. 322, pp. 448, 449 
 
 He who seeks equity must do equity Sec. 323, pp. 449, 450 
 
 Meaning and application of this maxim Sec. 323, pp. 449, 450 
 
 He who comes into equity must come with clean hands 
 
 Sec. 324, pp. 450, 451 
 
 Meaning and application of this maxim Sec. 324, pp. 450, 451 
 
 Equity aids the vigilant Sec. 325, p. 451 
 
 The purpose of this maxim Sec. 325, p. 451 
 
 Equality is equity Sec. 326, p. 451 
 
 lUustrations of this maxim Sec. 326, p. 451 
 
 Equity looks to the intent rather than to the form. ..Sec. 337, pp. 451-453 
 
 Meaning and illustrations of this maxim Sec. 327, pp. 451-453 
 
 Equity looks on that as done, which in good conscience ought to be 
 
 done Sec. 328, pp. 453-455 
 
 Doctrine of equitable conversion rests on this maxim 
 
 Sec. 328, pp. 453, 454 
 
 Doctrine of equitable ownership and equitable mortgages rests on 
 
 this maxim Sec. 328, p. 454 
 
 Equity implies an intention to fulfill an obligation. ..Sec. 329, pp. 455, 456 
 
 Meaning and application of this maxim Sec. 329, pp. 455, 456 
 
 Equity acts in personam Sec. 330, pp. 456, 457 
 
 Scope and extent of this maxim Sec. 330, pp. 456, 457 
 
 Equity acts specifically Sec. 331, p. 457 
 
 Illustrations of this maxim Sec. 331, p. 457 
 
 A right of action cannot arise out of fraud Sec. 332, pp. 457, 458 
 
 Meaning of this maxim Sec. 332, pp. 457, 458 
 
 Where both parties are equally in the fault, the condition of the de- 
 fendant is preferable Sec. 333, pp. 458, 459 
 
824 INDEX. 
 
 Maxims— Continued. 
 
 Meaning and application of this maxim Sec. 333, pp. 458, 459 
 
 A simple recommendation does not bind Sec. 334, pp. 459-461 
 
 Meaning of this maxim Sec. 334, pp. 459-461 
 
 Fraud and deceit should excuse no man Sec. 335, p. 461 
 
 Ignorance of the law excuses no one Sec. 336, pp. 461, 462 
 
 The extent of the application of this maxim Sec. 336, pp. 46 r, 462 
 
 Mechanics' Lien; (See LlENS.) 
 
 Origin and definition of Sec. 514, pp. 687, 688 
 
 Who may claim a, Sec. 515, pp. 688-690 
 
 Against what persons a, may be asserted Sec. 516, pp. 690-693 
 
 To what property it extends Sec. 516a, pp. 693-697 
 
 How it is created Sec. 517, pp. 697-699 
 
 The account to be filed by the claimant in order to create a 
 
 Sec. 518, pp. 699-701 
 
 How and by whom it may be enforced Sec. 519, ». 701 
 
 What should be averred in the bill in order to enforce a 
 
 Sec. 520, pp. 702, 703 
 
 Mental Incapacity. (See Insanity, Insane Person.) 
 When written instrument will be canceled because of. . .Sec. 55, pp. 96, 97 
 
 The meaning of the phrase Sec. 55, 0. 96 
 
 When, presumed and when not Sec. 56, p. 97 
 
 Not presumed, except in cases of wills Sec. 56, p. 97 
 
 What sufficient mental soundness to make a valid contract or wiTl. . 
 
 • • Sec. 57, pp. 97-99 
 
 Degree of mental soundness required to make a valid contract 
 
 Sec. 57, pp. 97, 98 
 
 Less capacity required to tdake will than contract Sec. 57, p. 98 
 
 Time to be looked to, in determining question of Sec. 57, pp. 98, 99 
 
 Minor. (See Guardian and Infants.) 
 
 Leasing and sale of lands of Sec. 124, pp. 207-211 
 
 Application and investment of proceeds of sale of property of 
 
 Sec. 125, pp. 211-212 
 
 Effect of sale and confirmation of property belonging to. .Sec. 126, p. 212 
 Transfer of property of, to another state or country. .Sec. 127, pp. 212-214 
 
 May nominate his guardian, when Sec. 216, p. 322 
 
 Emancipation of, by parent Sec. 230a, pp. 341, '342 
 
 Custody of person of minor by parent or guardian Sec. 218, p. 325 
 
 Misrepresentation — 
 
 As a ground for the cancellation of contracts Sec. 52, p. 92 
 
 To relieve against, must have been relied upon by the plaintiff 
 
 • Sec. 52, p. 92 
 
 What, amounts to fraud Sec. i68, pp. 258-268 
 
 To amount to fraud, must not be about trifling or immaterial mat- 
 ter Sec. 168, p. 258 
 
 To amount to fraud, must be believed and relied on. . Sec. 168, pp. 258, 259 
 Intent or motive of, immaterial Sec. 168, p. 259 
 
INDBX. 825 
 
 Misrepresentation— Continued. 
 , Mere expression of opinion does not amount to fraudulent, when. 
 
 ,.. Sees. 169, 334, pp. 260, 261, 459, 460 
 
 Mistake — 
 
 Definition of, and kinds of Sec ^^7 
 
 Grounds of jurisdiction in cases of Sec ^ '^ ^ 
 
 As to reUef in cases of, of law V. ■.■.■.■.■.■.V.SecVsaS. pp. 463, 464 
 
 Grounds of jurisdiction in cases of '. '. '. '.Sec! 337, p. 463 
 
 As to relief in cases of, of law Sec 338 p 
 
 Illustrations of the principle that, of law will not be remedied. 
 
 . ■ ■ ,'"■■.■■■ ®^*^- 339i pp. 464, 465 
 
 As to correction of mistake of fact Sec 340; p 465 
 
 Relief m cases of, in written instruments Sec. 341, pp. 465 466 
 
 Cancellation of deed or other written instrument because of 
 
 _ 11; ■ ■ ■ V "• '11 ; ■. S*'^^- 49. 342, pp. 89, 466 
 
 Correction of, in contracts of insurance Sec. 343, p. 467 
 
 Correction of a, of scrivener drafting the writing. . . .Sec. 344, pp. 467^ 468 
 
 As to use of parol evidence for correction of Sec. 345, p! 468 
 
 Money paid under a mistake of fact Sec. 346^ p. 468 
 
 How mistake should be alleged in the bill Sees. 47, 347, pp. go, 468 
 
 Deficiency in quantity of land mentioned in deed arising from.. Sec. 8, p. 18 
 
 What must appear to relieve from mistake of fact Sec. 340, p. 465 
 
 Reformation of instrument because of Sec. 341, p. 466 
 
 What must be shown to relieve against Sec. 49, p. 89 
 
 Host be of fact, as a general rule Sec. 49, p. 89 
 
 How, of law will be relieved against Sec. 49, p. 89 
 
 Of foreign law treated as one of fact Sees. 49, 336, pp. 89, 461 
 
 Proof as to, must be strong and clear Sec. 49, pp. 89, 90 
 
 How, must be alleged in the bill Sec. 49, p. 90 
 
 Money. (See Conversion.) 
 When, regarded as land, and when land regarded as See. 328, p. 453 
 
 Mortgages — 
 
 Definition and kinds of Sec. 531, pp. 712-714 
 
 When writing mortgage, though in form a deed Sec. 532, pp. 714-716 
 
 Criteria determining when instrument is mortgage, though in form 
 
 a deed Sec. 532, pp. 715, 716 
 
 Distinction between a mortgage and a pledge. .Sees. 328, 533, pp. 455, 717 
 
 IKstinction between, and conditional sales Sec. 534, pp. 717, 718 
 
 For support of the grantors and others Sec. 535, pp. 718, 719 
 
 Form and sufficiency of Sec. 536, pp. 719, 720 
 
 Defeasance as part of Sec. 537, p. 720 
 
 The debt secured by Sec. 538, pp. 720, 721 
 
 The doctrine of tacking as applied to Sec. 539, pp. 721, 72a 
 
 The property upon which, may be taken and the description thereof, 
 
 Sec. 540, pp. 722, 723 
 
 Upon railroad property Sec. 541, pp. 723, 724 
 
 Manner in which, may be given on railroad property and the extent, 
 
 Sec. 542, p. 724 
 
 Who entitled to rents after execution of Sec. 543, pp. 724, 725 
 
826 INDEX. 
 
 Mortgages —Continued. 
 
 Transfer of debt secured by Sec. 544, pp. 725, 726 
 
 ■Waste committed by the mortgagor and the prevention thereof by 
 
 injunction Sec. 545, pp. 727, 728 
 
 Rights and duties of the mortgagee when in possession of the mort- 
 gaged premises Sec. 546, pp. 728, 729 
 
 Equity of redemption as to Sec. 547, p. 729 
 
 What -will be treated as equitable Sec. 328, pp. 454, 455 
 
 Who may redeem from the lien of Sec. 548, pp. 730, 731 
 
 Statutes extending the time of redemption of, unden.Sec. 549, pp. 731, 732 , 
 
 Of the foreclosure of Sec. 550, pp. 732-735 
 
 The extent of the lien of Sec. 552, pp. 735, 736 
 
 Defenses to foreclosure of Sec. 551, p. 735 
 
 Are either legal or equitable Sec. 531, p. 713 
 
 What is a legal mortgage Sec. 531, p. 713 
 
 What is an equitable mortgage Sec. 531, p. 713 
 
 Definition of pledge Sec. 531, p. 717 
 
 What is conditional sale Sec. 534, p. 717 
 
 Difference between a conditional sale and mortgage Sec. 534, p. 717 
 
 Must be supported by consideration Sec. 538, p. 720 
 
 Consideration may be either good or valuable Sec. 538, p. 720 
 
 Change of form of indebtedness does not affect security of 
 
 Sec. 538, p. 721 
 
 Interest recoverable on Sec. 538, pi 721 
 
 As to mortgage on after-acquired property ; Sec. 540, pp. 722,- 723 
 
 Mortgagor tenant at will, when Sec. 543, pp. 724, 725 
 
 Mortgagor in possession entitled to rents, when Sec. 543, p. 725 
 
 When mortgagee may take possession of the property Sec. 543, p. 725 
 
 Transfer of negotiable note secured by Sec. 544, p. 726 
 
 Rights of assignee of Sec. 544, p. 726 
 
 As to cutting timber by mortgagor Sec. 545, p. 727 
 
 Duty of mortgagee in possession of property Sec. 5464 p. 728 
 
 After mortgagee takes possession, cannot surrender property at his 
 
 own option Sec. 546, p. 728 
 
 Mortgagee in possession will be held accountable for what. Sec. 546, p. 728 
 
 How and when mortgagee may obtain possession of property 
 
 Sec. 546, pp. 728, 729 
 
 Multiplicity of suits — 
 Ground and classification of equity jurisdiction to prevent. Sec. 348, p. 469 
 
 The prevention of, arising out of community of interest 
 
 Sec. 349, pp. 469, 470 
 
 The prevention of, arising out of conflict of interests 
 
 Sec. 349, pp. 469, 470 
 
 The doctrine preventing reiterated litigation between same parties 
 
 and concerning same matter Sec. 350, p. 470 
 
 Equity administers full relief to prevent Sec. 350a, pp. 470, 471 
 
 Injunctions to prevent a Sec. 275, p. 383 
 
 Cases wherein equity will interpose to prevent a Sec. 276, p. 383 
 
INDBX. 827 
 
 Multiplicity of Suits — Continued. 
 Sheriff may convene numerous claimants to same fund held by him 
 
 under an execution to prevent a Sec. 349, p. 470 
 
 As to loss among numerous insurers Sec. 349, p. 470 
 
 Municipal Corporations — 
 
 When law of estoppel applicable to Sec. 100, pp. 145, 146 
 
 Estoppel as to bonds issued by Sec. 100, pp. 145, 146 
 
 No estoppel as to ultra vires acts by Sec. 100, p. 146 
 
 Injunctions in cases Sec. 255, p. 367 
 
 Enjoining ordinances of Sec. 256, pp. 367, 368 
 
 Injunctions to prevent creation of illegal indebtedness by 
 
 Sec. 257, pp. 368, 369 
 
 When, may resort to use of injunction Sec. 258, pp. 369, 370 
 
 Injunctions against, for taking land for streets and sidewalks 
 
 Sec. 265, p. 375 
 
 Powers that are possessed by Sec. 255, p. 367 
 
 Natural or Incurable Impotency — 
 
 Of body, as ground for divorce Sec. 490, pp. 651, 652 
 
 Necessaries — 
 What are, within the meaning of the law Sec. 228, p. 339 
 
 New Trial — 
 
 Principles determining in equity Sec. 351, pp. 472-476 
 
 Can only be had in equity when not obtainable at law Sec. 351, p. 472 
 
 Cannot be had when plaintiff in default Sec. 351, p. 473 
 
 Cases wherein, will be granted Sec. 351, pp. 373-376 
 
 In granting, equity does not investigate legality of judgment at law. 
 
 Sec. 352, p. 476 
 
 Because of after-discovered evidence Sec. 353, pp. 476, 477 
 
 Allegations of the bill as to after-discovered evidence 
 
 Sec. 353, pp. 477, 478 
 
 Where right of appeal cut off Sec. 351, pp. 473, 474 
 
 When motion for, could not be made Sec. 351, p. 473 
 
 Because of popular prejudice Sec. 351, p. 473 
 
 Because witnesses were tampered with Sec. 351, p. 473 
 
 Where bill of exceptions not obtainable Sec. 351, pp. 473, 474 
 
 Because of fraud of opposite party Sec. 351, p. 474 
 
 Not granted because of negligence Sec. 351, pp. 474, 475 
 
 Records cannot be contradicted to obtain Sec. 351, p. 475 
 
 Not granted because of disqualification of juror, when Sec. 351, p. 475 
 
 Not granted after fair trial on merits Sec. 351, p. 476 
 
 When after-discovered evidence cumulative Sec. 353, p. 477 
 
 In suits for, no decree annulling judgment Sec. 355, p. 477 
 
 Non Compos Mentis — 
 
 Meaning of phrase Sec. 55, p. 96 
 
 Notice- 
 To be given by trustee before making sale of the trust property 
 
 Sec. 249, pp. 361, 362 
 
828 INDEX. 
 
 Notice and Recordation. (See RECORDATION OF INSTRUMENTS.) 
 
 Origin and scope of our recordings act Sec. 356, pp. 479, 480 
 
 What instruments void as to creditors and purchasers unless re- 
 corded Sec. 356, pp. 479, 480 
 
 Who are purchasers within the meaning of the recording acts 
 
 Sec. 357, pp. 481, 482 
 
 The purchaser must be a complete one Sec. 357, p. 481 
 
 What constitutes a complete purchaser Sec. 357, p. 481 
 
 Who are creditors within the meaning of the recording acts 
 
 Sec. 358, pp. 482, 483 
 
 Property and interests to which recording acts do or do not apply. . 
 
 Sec. 359, pp. 483. 484 
 
 Do not apply to mere choses in action Sec. 359, p. 483 
 
 Do not apply to mere equities of a party Sec. 359, pp. 483, 484 
 
 Character of writing that may be recorded Sec. 360, pp. 484-486 
 
 Recordation should be made by proper officer Sec. 360, p. 485 
 
 To be admitted to record must be acknowledged Sec. 360, p. 484 
 
 Where deed or other instrument must be recorded. . .Sec. 361, pp. 48iS, 487 
 
 ' What sufficient recordation of instrument Sec. 362, pp. 487, 488 
 
 Notice by subsequent purchasers before recordation of the instru- 
 ment of conveyance Sec. 363, pp. 488, 489 
 
 What constitutes actual notice to purchasers Sec. 364, pp. 489, 490 
 
 Notice to agent, notice to principal Sec. 364, p. 490- 
 
 What matters contained in record sufficient to put party on inquiry 
 
 so as to constitute notice to him Sec. 365, p. 490 
 
 As to lis pendens notice Sec. 366, pp. 490-493 
 
 Nuisance. (See iNjinrcTiCN.) 
 
 Distinction between, and trespass Sec. 243, p. 356 
 
 Injunctions to prevent Sec. 343, p. 356 
 
 Definition and kinds of ' Sec. 244, pp. 356, 357 
 
 Injunctions against private Sec. 245, pp. 357, 358 
 
 Cases wherein injunctions to restrain have been awarded 
 
 Sec. 246, pp. 358, 359 
 
 Options — 
 For the purchase or sale of real estate Sec. 404, pp. 539-542 
 
 l)p!nion — 
 
 When mere expression of, may or may not amount to fraudulent 
 
 representation Sees. 334, 169, pp. 45»-46i, 260 
 
 Order of Attachment. (See Attachment.) 
 
 As to the form of Sec. 40, p. 68^ 
 
 More than one, may issue on same affidavit Sec. 40, p. 68 
 
 Amount inserted in, must not exceed plaintifi 's demand 
 
 Sec. 40, pp. 68, 69 
 
 Must be signed by the clerk Sec. 40, p. 69 
 
 Must be issued in suit brought, or about to be brought Sec. 40, p. 69 
 
 How directed Sec. 40,' p. 69 
 
 When returnable Sec. 40, p. 69 
 
 What return on, should show Sec. 40, pp. 69, 70 
 
 Upon what it may be levied Sec. 40, pp. 70,' 71 
 
INDEX. 829 
 
 Order of Reference — 
 In ca-editor's suit Sec. 457, pp. 609, 610 
 
 Partition — 
 
 Definition and kinds of partition Sec. 367, p. 493 
 
 Compulsory partition and those among whom it may be made , . 
 
 • Sec. 368, pp. 494, 495 
 
 How and where parties may be compelled to make Sec. 369, p. 496 
 
 What property may be partitioned Sec. 370, pp. 496, 497 
 
 As to questions of title in suits for Sec. 371, pp. 497, 498 
 
 When land may be sold in a suit for Sec. 372, pp. 498-500 
 
 Principles applying to the method of making Sec. 373, pp. 500-503 
 
 • As to owelty of Sec. 373, pp. 501, 502 
 
 What constitutes ouster as between tenants in common 
 
 Sec. 374, pp. 503, 504 
 
 Principles of accounting between co-tenants when one has received 
 
 more than his share of the common property Sec. 375, pp. 504-506 
 
 The commissioners appointed to make, and their report 
 
 Sec. 376, pp. 507, 508 
 
 Who necessary parties to a suit for Sec. 377, pp. 508-510 
 
 What sufi&cient averments of a bill in suit for Sec. 378, pp. 510, 511 
 
 Party asking, must have actual subsisting interest in the property 
 
 and right to its possession Sec. 368, p.'494 
 
 When remaindermen cannot have Sec. 368, pp. 494, 495 
 
 Tenant for life may have Sec. 368, p. 495 
 
 Purchaser of co-tenant may have Sec. 368, p. 495 
 
 Widow cannot maintain suit for Sec. 368, p. 495 
 
 Owner of equity of redemption may have Sec. 368, p. 495 
 
 Common law method of, now obsolete Sec. 369, p. 496 
 
 Should be made in equity court Sec. 369, p. 496 
 
 To be made in county where land lies Sec. 369, p. 496 
 
 Any property capable of division is subject to Sec. 370, p. 496 
 
 Any land held in common subject to Sec. 370, p. 496 
 
 Incorporeal hereditaments are subject to Sec. 370, p. 496 
 
 As to the, of trust estates Sec. 370, p. 497 
 
 Courts of one state cannot make, of lands in another state.Sec. 370, p. 497 
 
 What to be done when an equal, cannot be made Sec. 370, p. 497 
 
 Our law relating to, taken from Virginia statute Sec. 371, p. 497 
 
 Questions of tiUe may now be settled in, when Sec. 371, pp. 497, 498 
 
 May remove cloud in suit for Sec. 371, p. 498 
 
 Land must be divided and not sold, when Sec. 372, p. 499 
 
 In suit for, parties may consent to sale Sec. 372, p. 499 
 
 Land in, should be sold as a whole in absence of consent to the 
 
 contrary Sec. 372, p. 500 
 
 Cannot sell land unless propriety therefor appears in the record of 
 
 suit for ^ • --Sec. 372, p. 500 
 
 Commissioners need not be appointed to ascertain propriety of sale 
 
 in suit for. Sec. 372, p. 500 
 
 Must ascertain interest of parties before sale in Sec. 372, p. 500 
 
830 INDEX. 
 
 Partition— Continued. 
 
 One tenant cannot make another contribute to repairs, -when 
 
 Sec. 373, p. 500 
 
 Part improved should be assigned to improver Sec. 373, pp. 500, 501 
 
 As to allowance for improvements in suits for Sec. 373, p. 501 
 
 Allotting to purchaser of co-tenant his part Sec. 373, p. 501 
 
 Owelty of, not made in this state, but is made in Virginia 
 
 Sec. 373, pp. 501, 502 
 
 As to assigning rights of way in suits for Sec. 373, pp. 502, 503 
 
 Possession of one tenant is the possession of all Sec. 374, p. 503 
 
 What occupancy of tenant will bar the others Sec. 374, p. 503 
 
 What actual ouster will bar right of Sec. 374, p. 504 
 
 Purchase of incumbrance or outstanding title by one tenant in com- 
 mon inures to benefit of all Sec. 374, p. 504 
 
 Number of commissioners that may make Sec. 375, p. 507 
 
 Commissioners to make, must be sworn Sec. 376, p. 507 
 
 Commissioners need not give notice of the time they have fixed 
 
 upon to make Sec. 376, p. 507 
 
 Commissioners cannot be removed except for cause Sec. 376, p. 507 
 
 Duty of commissioners in making Sec. 376, pp. 507, 508 
 
 Buty of commissioners when they determine, cannot be made 
 
 Sec. 376, p. 508 
 
 As to exceptions to commissioners' report Sec. 376, p. 508 
 
 Must ascertain what estate exists before making Sec. 376, p. 508 
 
 All persons interested should be parties to suit for Sec. 377, p. 508 
 
 Lien holders need not be parties to suit for Sec. 377, p. 509 
 
 Administrator need not be party to suit for Sec. 377, p. 509 
 
 Grantee of co-tenant and vendee of, necessary parties to. . .Sec. 377, p. 509 
 
 Heirs at law and widow necessary parties to suit for. Sec. 377, p. 509 
 
 When reversioner necessary party to Sec. 377, p. 509 
 
 Holders of legal title necessary parties to suit for Sec. 377, pp. 509, 510 
 
 Who may be plaintiff in suit for Sec. 377, p. 510 
 
 Correction of mistake whereby one is allotted more than his pro- 
 portionate share of land in Sec. 340, p. 465 
 
 Partners — 
 
 Contribution among Sec. 65, pp. 107, 108 
 
 Powers of Sec. 380, p. 513 
 
 Suits by and between Sec. 382, pp. 514,-515 
 
 Partners. (See INJUNCTIONS and Parnership.) 
 
 Injunctions in cases of Sec. 261, p. 371 
 
 Cases wherein injunctions will or will not be allowed by or against, 
 
 • Sec. 262, p. 372 
 
 Powers of Sec. 380, pp. 513, 514 
 
 Suite by and between Sec. 382, pp. 514, 515 
 
 Settlement and accounting between Sec. 383, pp. 515, 516 
 
 Partnership — 
 What constitutes, and the different kinds of Sec. 379, pp. 512, 513 
 
INDEX. • 831 
 
 Partnership— Continued. 
 
 Powers of co-partners Sec. 380, pp. 513, 514 
 
 How assets of, applied in payment of firm and other debts 
 
 Sec. 381, p. 514 
 
 Suits by and between partners Sec. 382, pp. 514, 515 
 
 Settlement and accounting between partners Sec. 383, pp. 515, 516 
 
 Who may maintain bill for an accounting of the affairs of .Sec. 384, p. 516 
 
 Mode of taking accounts in settlement of affairs of Sec. 385, p. 517 
 
 When and how dissolution of, effected Sec. 386, p. 517 
 
 Effect of dissolution of Sec. 387, p. 518 
 
 Party to Suit — 
 
 Garnishee in attachment, a Sec. 42, p. 71 
 
 Corporation necessary, to dissolve it Sees. 73, 74, pp. 113, 114 
 
 Plaintiff in suit to set aside a fraudulent conveyance . Sec. 183, pp. 283, 284 
 Defendant in suit to set aside a fraudulent conveyance 
 
 Sec. 184, pp. 284, 285 
 
 Plaintiff in injunction to stay waste Sec. 237, p. 350 
 
 Defendant in partition Sec. 377, pp. 508, 509 
 
 Plaintiff in partition Sec. 377, p. 510 
 
 Plaintiff in suits for partnership accounting and settlement 
 
 Sec. 384, p. 516 
 
 Plaintiff in suit for specific performance Sec. 400, pp. 534, 535 
 
 Defendant in suit for specific performance Sec. 401, pp. 535-537 
 
 When original judgment creditor a necessary Sec. 413, p. 558 
 
 Plaintiff in suit to contest will Sec. 431, pp. 574, 575 
 
 Defendant in suit to contest will Sec. 432, p. 575 
 
 Plaintiff to creditors' suit Sec. 451, pp. 599, 600 
 
 Defendant to creditors' suit Sec. 452, pp. 600-604 
 
 When stockholder a, corporation necessary Sec. 74, p. 114 
 
 Corporation necessary, to annul ultra vires act Sec. 78, p. 120 
 
 To sell land of infant or insane person Sec. 124, p. 208 
 
 Defendant, to set aside judgment or decree Sec. 290, p. 402 
 
 Patents and Copyrights. (See Injunctions.) 
 
 Injimctions to restrain infringements of . i Sec. 251, pp. 364, 365 
 
 When preliminary injunction will be granted to restrain infringe- 
 ment of Sec. 252, p. 365 
 
 When previous trial at law necessary before awarding injunction to 
 
 prevent infringement of Sec. 253, pp. 365, 366 
 
 Cases wherein patent has expired and infringement has ceased 
 
 Sec. 254, p. 366 
 
 Penalties. (See FORFEITURES AND PENALTIES.) 
 
 Jurisdiction in equity as to relief from Sec. 507, pp. 678, 679 
 
 In cases of breach of covenant for non-payment of rent 
 
 Sec. 508, pp. 679-681 
 
 When an agreed sum is a penalty, and when liquidated damages. . . 
 
 Sec. 509, pp. 681-683 
 
 Relief as to statutory Sec. 510, p. 683 
 
822 INDBX. 
 
 Personal Representatives. (See EXECUTORS and Administrators.) 
 
 The appointment and qualification of Sec. 107, pp. 160-162 
 
 Must qualify before county court or clerk in vacation Sec. 107, p. 160 
 
 Penalty of the bond of Sec. 107, p. 161 
 
 The conditions of the bond of Sec. 107, p. i6i 
 
 Where more than one, relation to each other .Sec. 107, p. 161 
 
 When need not give bond Sec. 107, p. 161 
 
 Who may require, to give bond Sec. 107, p. 161 
 
 When court may require security of Sec. 107, p. 162 
 
 Powers of, when appointed by clerk, before confirmation of by the 
 
 court Sec. 107, p. 162 
 
 When appointed by de facto government Sec. 107, p. 162 
 
 Who may be appointed Sec. 108, pp. 162-165 
 
 One named as executor in will to be first appointed Sec. 108, p. 162 
 
 One appointed where none named in will or where party named 
 
 refuses to qualify Sec. 108, p. 162 
 
 Party to be appointed, where one dies intestate Sec. 108, p. 163 
 
 When sheriff may be appointed Sec. 108, pp. 163, 164 
 
 As to the appointment of non-residents Sec. 108, p. 164 
 
 Marriage annuls powers of woman as Sec. 108, pp. 164, 165 
 
 Powers of an executor of an executor Sec. 108, p. 165 
 
 The powers of Sec. 109, pp. 165-169 
 
 Cannot act till they have qualified, except Sec. 109, p. 165 
 
 Have full control of personal estate Sec. 109, p. 165 
 
 May sell choses in action, when Sec. 109, p. 165 
 
 May release lien on real estate, when Sec. 109, p. 165 
 
 May submit matters to arbitration, when Sec. 109, pp. 165, 166 
 
 May compound or release debt, when Sec. 109, p. i65 
 
 May pay attorneys' fees, when Sec. 109, p. 166 
 
 May sell estate of decedent, when Sec. 109, p. 166 
 
 When no power to sell real estate Sec. 109, p. i66 
 
 May assign note, when Sec. 109, p. 167 
 
 May extend time of payment of debt Sec. 109, p. 167 
 
 May erect tombstones, when and to whom Sec. 109, p. 167 
 
 One may receive funds, without other's concurrence Sec. 109, p. 167 
 
 May withhold payment of legacy, when Sec. 109, p. 167 
 
 May require refunding bond before paying legacy Sec. log, p. 167 
 
 May appeal from judgment or decree without bond Sec. 109, p. 168 
 
 May obtain injunction without bond Sec. 109, p. 168 
 
 When cannot transfer note Sec. 109, p. 168 
 
 Cannot impeach act of decedent as fraudulent Sec. 109, p. i68- 
 
 Cannot make personal contract so as to bind estate, when . .Sec. 109, p. 1^8 
 
 Powers of an executor under a will Sec. no, pp. 169-171 
 
 Powers of executor as to sale of real estate Sec. no, p. 169 
 
 Naked power of sale as to real estate Sec. no, p. 169 
 
 Power of sale of real estate coupled with an interest Sec. no, p. 169 
 
 Qualified power of sale of real estate Sec. no, p. 170 
 
 Words creating power of sale of real estate by Sec. no, p. 169 
 
INDEX. 833 
 
 Personal Representatives — Continued. 
 
 Effect upon purchaser of real estate by, when unauthorized , . 
 
 Sec. no, p. 17Q 
 
 Recitals in deed of, to purchaser of real estate Sec. no, p. 170 
 
 Sale of real estate by survivor of two or more Sec. no, p. 170 
 
 Purchaser of real estate from, need not look to application of pur- 
 chase-money Sec. no, p. 171 
 
 May enter into executory contract for sale of land Sec. no, p. 171 
 
 AVhen may sell real estate vyithout order of court Sec. no, p. 171 
 
 Power of sale does not authorize exchange of laud by Sec. no, p. 171 
 
 Sale of land must be for money consideration Sec. no, p. 171 
 
 No power to carry on trade or business of testator, when. .Sec. no, p. 171 
 
 The duties of Sec. noa, pp. 171-174 
 
 The utmost good faith required of Sec. noa, p. 171 
 
 Duties of, as pointed out by statute Sec. noa, p. 172 
 
 How debts should be characterized in inventory of Sec. noa, p. 172 
 
 With what to be charged in the appraisement bill. .Sec. noa, pp. 172, 173 
 
 Appointment of debtor as Sec. noa, p. 173 
 
 Sale of goods to be made by Sec. noa, p. 173 
 
 When property to be sold to pay funeral expenses, etc Sec. noa, p. 174 
 
 A life estate treated as personal assets Sec. noa, p. 174 
 
 What to be charged as assets to Sec. in, pp. 174-175 
 
 Can only be charged with assets as of time received Sec. in, p. 174 
 
 When assets will be presumed to have been collected by. . .Sec. in, p. 175 
 What are assets so as to be charged to, and make bond and securi- 
 ties liable for Sec. in, p. 175 
 
 What the law regards as a devastavit by Sec. 112, pp. 176-178 
 
 Meaning of the word "devastavit". Sec. 112, p. 176 
 
 When failure to collect debts by, will be treated as a devastavit 
 
 Sec. 112, p. 176 
 
 When not bound to sue to collect debt Sec. 112, p. 176 
 
 As to omission to plead by Sec. 112, pp. 176, 177 
 
 As to acts of, under the government and laws of Virginia, at Rich- 
 mond, between certain dates Sec. 112, pp. 177, 178 
 
 The investment by, of the estate of the tsstator Sec. 113, pp. 178, 179 
 
 Degree of care required of, in the matter of investments 
 
 Sec. 113, pp, 178, 179 
 
 Stating the accounts of Sec. 114, pp. 179-181 
 
 Will be charged with all assets and devastavits Sec. 114, pp. 179. 180 
 
 Should be credited with all proper disbursements, including costs, 
 
 reasonable counsel fees, commissions, etc Sec. 114, p. 180 
 
 How interest to be charged to Sec. 114, pp. 180, 181 
 
 How accounts to be opened and closed Sec. 114, pp. 180, 181 
 
 Payment of legacies by Sec. 115, pp. 181, 182 
 
 Time when legacies payable by Sec. 115, p. 181 
 
 May require refunding bond before payment of legacy. . . .Sec. 115, P- 181 
 
 I^egacy voluntarily paid cannot be recovered back by, when 
 
 Sec. 115, pp. i8i, 182 
 
 53 
 
834 INDEX. 
 
 Personal Representative — Continued. 
 
 Action at common law to recover legacy Sec. 115, p. 182 
 
 Effect of overpayment of one legacy upon the rights of other lega- 
 tees Sec. 115, p. 182 
 
 As to the payment of interest on legacies by Sec. 115a, pp. 182-186 
 
 The order in which debts and claims shall be paid by 
 
 Sec. 117, pp. 190-194 
 
 Order of payment of debts by, prescribed by statute Sec. 117, p. 190 
 
 When not liable for payment of debt out of its order 
 
 Sec. 117, pp. 190, 191 
 
 Rights of creditors as existing at date of decedent's death cannot be 
 
 changed by Sec. 117, p. 191 
 
 Statute as to order of pajrment of debts of decedent is mandatory, 
 
 and must be followed by Sec. 117, p. 191 
 
 As to priority of mortgage and other liens in the payment of debts 
 
 by Sec. 117, p. 192 
 
 Effect of payment of debt in full where deficiency of assets exists. . 
 
 Sec. 117, p. 192 
 
 When, may reimburse themselves out of the assets Sec. 117, p. 192 
 
 As to off-sets against demand of estate of decedent. . .Sec. 117, pp. 192, 193 
 
 Debts which cannot be paid by Sec. 117, pp. 193, 194 
 
 Not necessary to reduce claim to judgment before payment by the. 
 
 Sec. 117, p. 194 
 
 When, must pay for work done after death of decedent Sec. 117, p. 194 
 
 When, may lawfully transfer debt to themselves Sec. 117, p. 194 
 
 Order in which property should be applied to the payment of debts 
 
 by Sec. 117a, pp. 194, 195 
 
 The commissions of Sec. 118, pp. 195-197 
 
 The usual commissions of Sec. 118, p. 195 
 
 When, will be allowed more than ordinary commissions. .Sec. 118, p. 195 
 
 When, will not be allowed commissions Sec. 118, pp. 195, 196 
 
 When double commissions will be allowed to Sec. 118, pp. 196, 197 
 
 Surcharging and falsifying the accounts of Sec. 119, pp. 197, 198 
 
 Accounts of, must be surcharged and falsified in a court of equity, 
 
 when Sec. 119, p. 197 
 
 When accounts will be treated as prima facie correct Sec. 119, p. 197 
 
 Right to surcharge accounts of, may be lost by laches Sec. 119, p. 197 
 
 Who may surcharge and falsify accounts of Sec. 119, pp. 197, 198 
 
 How accounts should be surcharged and falsified Sec. 119, p. 198 
 
 As to executors de son tort Sec. 119a, pp. 198, 199 
 
 Rights of executors de son tort Sec. 119a, p. 199 
 
 Petition — 
 Sale of real estate of minor in a summary way by Sec. 124, p. 208 
 
 Plea— 
 Of stated account , Sec. i6b, p. 30 
 
 Pledge- 
 Delivery necessary to a Sec. 328, p. 455 
 
INDEX. 835 
 
 Pledge — Continued. 
 
 Definition of a Sec. 533, P- 7i7 
 
 Transfer of title to property not necessary to create Sec. 533, p. 717 
 
 Principal and Surety. (See SURETIES. ) 
 
 Suretyship defined, and nature of contract Sec. 388, pp. 519, 520 
 
 Who is principal and who surety Sec. 389, p. 520 
 
 How relationship of may be shown Sec. 389, pp. 520 52X 
 
 Contribution among co-sureties Sees. 64, 390, pp. 107, 521 
 
 Rights of surety as to principal Sec. 391, pp. 521-52J 
 
 Remedies of surety as to principal Sec. 391, pp. 522, 523 
 
 Rights of surety as to creditors Sec. 392, pp. 523^ 524 
 
 Remedy of surety as to creditors Sec. 392, pp. 523, 524. 
 
 What will release surety Sec. 393, pp. 524I 525. 
 
 What will not release surety Sec. 394, pp. 525, 526 
 
 Duty of the obligee after notice by surety to sue Sec. 395, pp. 526, 527 
 
 Contract of surety a primary one Sec. 388, p. 519 
 
 Contract of surety cannot be changed without his consent 
 
 Sec. 388, p. 519 
 
 Parties presumed to be principals, when Sec. 389, p. 520 
 
 Suretyship may be established by parol Sec. 389, pp. 520, 521 
 
 When surety may be reimbursed by principal Sec. 391, -p. 521 , 
 
 Contract of reimbursement by principal implied Sec. 391, p. 521 
 
 Surety pajdng debt of principal entitled to interest Sec. 391, p. 522 
 
 When surety may recover costs and expenses of suit from his prin- 
 cipal Sec. 391, p. 522 
 
 Remedies of surety against principal for relief Sec. 391, p. 522 
 
 When equity will compel creditor to pursue principal first for the 
 
 payment of his debt Sec. 391, p. 523 
 
 Defense of one surety inures to all, when Sec. 392, pp, 523, 524 
 
 Surety may enforce all securities which creditor has against prin- 
 cipal Sec. 392, p. 524 
 
 When compromise of creditor with principal will release the surety. 
 
 Sec. 393, p. 524 
 
 When extension of time by creditor will release surety Sec. 393, p. 524 
 
 As to payment of interest in advance releasing surety Sec. 393, p. 525 
 
 Release of surety by alteration of contract Sec. 393, p. 525 
 
 Creditor not bound to active diligence in the prosecution of his de- 
 mand Sec. 394, p. 525 
 
 A mere countermand of execution will not release surety. ..Sec. 394, p. 525 
 
 A mere continuance of a case will not release surety Sec. 394, p. 525 
 
 What bill filed by surety to be relieved from contract must show on 
 
 its face Sec. 394, p. 526 
 
 Successive indorsers treated as co-sureties, when Sec. 394, p. 526 
 
 Duty of creditor after notice by surety to sue Sec. 395, p. 527 
 
 Public Policy — 
 
 Estoppel cannot be invoked when in contravention of 
 
 Sec. 104, pp. 153, 154 
 
 Acts treated as fraudulent because against Sec. 173, pp. 264-268 
 
836 INDEX. 
 
 Public Policy — Continued. 
 
 Contracts in restraint of marriage void Sec. 173, pp. 264, 265 
 
 Contracts in restraint of trade Sec. 173, p. 265 
 
 Contract opposed to, not enforced Sec. 324, p. 450 
 
 Public Use. (See Injunction.) 
 
 Injunctions to restrain the taking of private property for 
 
 Sec. 264, pp. 374, 375 
 
 Private property cannot be taken for, until the owner be first paid 
 
 therefor Sec. 264, p. 374 
 
 But if private property be merely damaged by, no injunction will 
 
 issue Sec. 264, p. 375 
 
 Injunctions against towns as to taking land for Sec. 265, p. 375 
 
 Injunctions against railroad companies for appropriating land for 
 
 right of way Sec. 266, p. 376 
 
 When court will award an issue to determine quantum of damages 
 
 when land has been taken for Sec. 267, pp. 376, 377 
 
 Purchase — 
 
 One holding fiduciary relation to property cannot, at his own sale 
 
 thereof Sec. 54, pp. 93, 94 
 
 From fraudulent grantor or grantee Sec. 198, pp. 303, 304 
 
 Purchase Money — 
 
 Effect of acknowledging receipt of, in deed Sec. 105, p. 159 
 
 When purchaser from executor does not have to see to application 
 
 of Sec. no, p. 171 
 
 Purchaser — 
 
 At judicial sale Sec. 293, p. 406 
 
 Rights and obligations of, at judicial sale Sec. 293, p. 406 
 
 Title of, at judicial sale protected Sec. 293, p. 406 
 
 Effect upon title, at judicial sale when decree of sale set aside 
 
 Sec. 293, pp. 406, 407 
 
 How, at judicial sale compelled to pay purchase-money Sec. 293, p. 408 
 
 When and how, at judicial sale will be required to complete pur- 
 chase Sec. 293, p. 408 
 
 When court will not give, at judicial sale, benefit of his purchase . . 
 
 Sec. 293, pp. 408, 409 
 
 Railroad Companies. (See Injunctions.) 
 
 Injunctions against, for appropriating land for right of way 
 
 Sec. 266, p. 376 
 
 Real Estate. (See Sai,BS of Rsai, BstaTB.) 
 
 When charged with payment of legacies Sec. ii6a, pp. 188-190 
 
 Receiver — 
 
 General, how appointed Sec. 130, p. 214 
 
 Special, when appointed Sees. 13Q, 137, pp. 214, 218-221 
 
 Definition of Sec. 145, p. 234 
 
 Bond to be given by Sec. 130, pp. 214, 215 
 
 Appointment of, in the discretion of the court Sec. 130, p. 215 
 
 The duties of a general Sec. 131, pp. 215, 216 
 
 Account and report to the court of a general Sec. 132, p. 216 
 
INDBX. 837 
 
 Receiver — Continued. 
 
 Powers of a general, over stocks and secnrities Sec. 133, p. 217 
 
 Wability of general, for funds that may come into his hands 
 
 Sec. 134, p. 217 
 
 The bond of general, and giving of new bond by him 
 
 Sec. 135, pp. 217, 218 
 
 Interest on loans made by general, and his compensation 
 
 _ Sec. 136, p. 218 
 
 Object of the appointment of a special Sec. 137, pp. 218, 219 
 
 Instances wherein special will be appointed Sec. 137, pp. 220, 221 
 
 Cases wherein special has and has not been appointed 
 
 • ; Sec. 138, pp. 221-225 
 
 Appointment of special, while case is pending in the court of ap- 
 
 P^^s Sec. 139, p. 225 
 
 How special may be appointed Sec. 140, pp. 225, 226 
 
 When notice should be given before appointment of special 
 
 Sec. 141, pp. 227, 22» 
 
 When notice need not be given before appointment of special 
 
 Sec. 141, pp. 227, 228 
 
 Appeal from action of court appointing Sec. 141, p. 228 
 
 Right of, to bring suit Sec. 142, pp. 228-230 
 
 AVhen and where, may be sued Sec. 143, pp. 230, 231 
 
 The general rights, powers and duties of a special. . .Sec. 144, pp. 231-234 
 
 Can do nothing till bond has been given Sec. 144, p. 231 
 
 Cannot loan money without order of court Sec. 144, pp. 231, 23a 
 
 As to distribution of funds by Sec. 144, p. 232 
 
 Discretion of, as to property Sec. 144, p. 23a 
 
 May apply to court for instructions Sec. 144, pp. 232, 233 
 
 May employ counsel when Sec. 144, p. 233 
 
 May receive and receipt for debts when Sec. 144, p. 233 
 
 May make deed for property sold by him Sec. 144, p. 233 
 
 Cannot purchase at his own sale Sec. 144, p. 233 
 
 When one, liable for malfeasance of the other Sec. 144, p. 233 
 
 When, should take possession of property Sec. 144, p. 233 
 
 Who may be appointed a special Sec. 145, pp. 234, 235 
 
 Consideration governing the selection of a special.. .Sec. 145, pp. 234, 235 
 
 The compensation of a special Sec. 146, pp. 235, 236 
 
 The character of compensation of special Sec. 146, p. 236 
 
 The accounts of the Sec. 147, pp. 236, 237 
 
 The settlement of the accounts of Sec. 148, pp. 237, 238 
 
 Should prepare inventory of property Sec. 147, p. 236 
 
 Must keep fair and accurate accounts Sec. 147, p. 236 
 
 Must keep assets separate and distinct from his own Sec. 147, p. 236 
 
 Should tike proper receipts for his disbursements Sec. 147, p. 237 
 
 Recordation of Instruments. (See NoTiCB and Recordation.) 
 
 Origin and scope of the statute appljring to Sec. 356, pp. 479, 480 
 
 Meaning of the word "purchaser" Sec. 357, p. 481 
 
 Who a purchaser for value without notice Sec. 357, pp. 481, 48a 
 
838 INDEX. 
 
 Recordation of Instruments — ConHnued. 
 
 As to a purchaser from a subsequent purchaser Sec. 357, p. 482 
 
 WhD are "creditors" within the meaning of the law as to 
 
 Sec. 358, p. 482 
 
 The creditor contemplated must be a lienholder Sec. 358, p. 482 
 
 Recording acts operate diilerently as to creditors and ptu-chasers 
 
 Sec. 358, p. 483 
 
 A purchaser must be one without notice Sec. 358, p. 483 
 
 A creditor need not be one without notice Sec. 358, p. 483 
 
 The property or interests to which the law as to, either applies or 
 
 does not apply Sec. 359, pp. 483, 484 
 
 The law as to does not apply to mere choses in action. . . . .Sec. 359, p. 483 
 The law as to does not apply to the mere equities of a party 
 
 Sec. 359, p. 483 
 
 The law as to, applies to written contract for sale of land. .Sec. 359, p. 484 
 
 Character of writing to which law as to, applies Sec. 360, pp. 484-486 
 
 Writings as enumerated by statute to which law as to, applies 
 
 Sec. 360, p. 484 
 
 Can be no, until acknowledged or duly proved Sec. 360, p. 484 
 
 Should be made by proper officer Sec. 360, p. 485 
 
 Cannot be made when acknowledged before grantee Sec. 360, p. 485 
 
 Made by corporation, how acknowledged Sec. 360, p. 485 
 
 What a sufficient Sees. 360, 362, pp. 485, 487 
 
 Writing need not be under seal Sec. 360, p. 486 
 
 Of an executory contract as to real estate Sec. 360, p. 486 
 
 Description of land in Sec. 360, p. 486 
 
 Where writing must be recorded Sec. 361, pp. 486, 487 
 
 Must be indexed and how , Sec. 362, p. 487 
 
 Of copy of writing from another, when Sec. 362, p. 488 
 
 No time provided for the Sec. 362, p. 488 
 
 Notice by subsequent purchasers before Sec. 363, p. 488 
 
 What sufficient to charge subsequent purchaser with notice. Sec. 363, p. 488 
 
 What constitutes actual notice Sec. 364, pp. 489, 490 
 
 Mere vague reports not actual notice Sec. 364, p. 489 
 
 Knowledge of facts so as to put party on inquiry is actual notice, 
 
 Sec. 364, p. 489 
 
 Purchase of land of which another is in open and visible possession 
 
 is actual notice '. Sec. 364, p. 489 
 
 Notice to an agent is notice to the principal Sec. 364, p. 490 
 
 What matters contained in record sufficient to put party on inquiry 
 
 so as to constitute notice as to him Sec. 365, p. 490 
 
 Duty of purchaser to look to title papers under which he makes his 
 
 purchase Sec. 365, p. 490 
 
 As to lis pendens notice Sec. 366, pp. 490-492 
 
 Priority as to unrecorded deeds or mortgages Sec. 321, p. 448 
 
 Priority given legal title, when Sec. 322, p. 448 
 
 Removal of Property — 
 
 Out of the state as ground for attachment Sec. 38, p. 59 
 
INDBX. 839 
 
 Rents and Profits — 
 Not necessary to ascertain, before sale of land in attachment, 
 
 Sec. 44, pp. 77, 78 
 
 Owner of land sold at judicial sale entitled to, when Sec. 293, p. 408 
 
 Rescission of Contracts — 
 
 For mutual mistake in sale of land as to quantity. .Sees. 8, 13, pp. 18, 21, 22 
 
 On the ground of fraud Sec. 48, p. 88 
 
 Generally, on ground of mistake Sees. 49, 340, 341, pp. 89, 90, 465-466 
 
 See Cancellation of Written Instruments 
 
 Sees, so, 52, 54, 55, 58, 59, 60, pp. 89, 90, 92, 95, 96, 97, 99-101 
 
 Party defendant must be placed in statu quo, before plaintiff can 
 
 have, -when Sec. 60, pp. 100, loi 
 
 Sale of Real Estate — 
 
 When can be no dscree for, until dower has been assigned when land 
 
 subject to Sec 94, p. 137 
 
 Abatement of purchase-money on Sec. 5, pp. 1 1-14 
 
 When by the acre, when in gross Sec. 6, pp. 14-16 
 
 Fraud of vendor in, Sec 7, pp. 16-18 
 
 Deficiency in quantity mentioned in deed in Sec. 8, p. 18 
 
 Unliquidated damages cannot abate purchase-money in. .Sec. 9, pp. 18, ig 
 Abatement of purchase-money in cases of, when all of it has been 
 
 paid Sec. 10, pp. 19, 20 
 
 Evidence of vendor's representations in cases of Sec. 11, pp. 20, 21 
 
 Extent of deficiency of land in, to authorize abatement of purchase- 
 money Sec. 12, p. 21 
 
 When vendor may demand payment for excess of land in quantity 
 
 named in his deed on Sec. 13, pp. 21, 22 
 
 Rule determining amount of abatement on Sec. 14, pp. 22, 23 
 
 Of insane person by his committee Sec. 124, pp. 207-211 
 
 Of ward by guardian Sec. 124, pp. 207-211 
 
 Application and investment of proceeds arising from, of persons un- 
 der disabiUty Sec. 125, pp. 211, 212 
 
 Effect of, and confirmation of, belonging to persons under disa- 
 bility Sec. 126, p. 212 
 
 Sales Under Deeds of Trusts. (See Injunctions and Deeds of Trust.) 
 
 Injunctions enjoining Sec. 248, p. 361 
 
 Power of trustee as to Sec. 249, pp. 361-363 
 
 In making, trustee must follow terms of trust deed Sec. 249, p. 361 
 
 In advertising, trust deed should be followed Sec. 249, p. 361 
 
 In making, no more property should be sold than necessary.. Sec. 249, p. 362 
 
 In making, trustee must have legal title Sec. 249, p. 362 
 
 Can be no, when creditors' suit brought against land upon which 
 
 trust exists, when Sec. 249, pp. 362, 363 
 
 Illustrative cases of the use of injunction to prevent. .Sec. 250, pp. 363, 364 
 
 Notice and terms of sale under trust deed Sec. 479, pp. 63S-640 
 
 As to the trustee making sale of the trust property. ..Sec. 480, pp. 640-642 
 
 Senile Dementia — 
 
 Meaning of phrase Sec. 55, p. 9* 
 
 Set-off. (See Injunction.) 
 
 When equity will interpose to make available Sec. 277, p. 384 
 
 Against estate of decedent, where estate is insolvent. .Sec. 117, pp. 192, 193 
 
 Before arbitrators under statute Sec. 23, pp. 36, 37 
 
 When can be no, allowed before arbitrators Sec. 25, p. 38 
 
840 INDEX. 
 
 Specific Performance — 
 
 Principles governing, of contracts Sec. 396, pp. 528, 529 
 
 Of contracts rests in court's discretion Sec. 396, p. 528 
 
 When court will generally decree, of contracts Sec. 396, p. 529 
 
 Character of contract entitling party to Sec. 397, pp. 529, 530 
 
 When contract for, need not be in writing Sec. 398, pp. 530-533 
 
 Parol contract for sale of real estate and part performance thereof. 
 
 Sec. 398, p. 531 
 
 What constitutes part performance, Sec. 398, pp. 531, 532 
 
 Possession as element of part performance Sec. 398, p. 532 
 
 Payment of purchase money as element of part performance 
 
 Sec. 398, p. 532 
 
 Improvements as elements of part performance Sec. 398, p. 533 
 
 As to vendor's title in suits for Sec. 399, pp. 533, 534 
 
 Court will not decree, as a rule unless vendor can make good title. . 
 
 Sec. 399, p. 533 
 
 When vendor sells not affecting to have perfect title Sec. 399, p. 534 
 
 Disputants of vendor's title must be made parties defendant to the 
 
 suit for, when Sec. 399, p. 534 
 
 What persons may compel Sec. 400, pp. 534, 535 
 
 Who should be defendants in suits for Sec. 401, pp. 535-537 
 
 What sufficient signing of contract under statute of frauds 
 
 Sec. 402, pp. 537, 538 
 
 Use of parol evidence to explain contract for sale of real estate 
 
 • Sec. 403, pp. 538, 539 
 
 The enforcement of options for purchase of real estate 
 
 Sec. 404, pp. 539-542 
 
 What contracts will be enforced Sec. 405, p. 542 
 
 Illustrative instances of Sec. 405, pp. 543-545 
 
 , What contracts will not be specifically enforced Sec. 406, pp. 545-547 
 
 Further illustrative instances of the Sec. 406, pp. 546, 547 
 
 Of contracts against married women Sec. 407, pp. 547, 548 
 
 Allegations of the bill in a suit for Sec. 408, pp. 548, 549 
 
 The defense to suits for Sec. 409, pp. 549, 550 
 
 The decree in suits for .Sec. 410, pp. 550, 551 
 
 Statute of Limitations — 
 
 Bar of dower by ■ Sec. 97, p. 139 
 
 Must be pleaded by personal representative. Sec. 152, p. 242 
 
 When equity follows the laws as to the Sec. 320, p. 447 
 
 When ignorance of law will prevent the operation of the. .Sec. 336, p. 462 
 
 As to the application of, in creditor's suit Sec. 462, pp. 618, 619 
 
 Equity will adopt by analogy, on purely legal demand 
 
 Sec. 298, pp. 415, 4t6 
 
 Long delay may be a defense to a demand in equity, though not 
 
 barred by Sec. 298, p. 416 
 
 As to trusts Sec. 567, pp. 757, 758 
 
 As to will contests Sec. 429, p. 573 
 
INDBX. 841 
 
 Stock- 
 As to collection of unpaid Sec. 75, p. 115 
 
 Corporation may collect unpaid, kow Sec. 75, p. 115 
 
 Dividend may be applied to unpaid Sec. 75, p. 115 
 
 How creditor may enforce payment of unpaid Sec. 75, pp. 115, 116 
 
 Canceled because subscription to fraudulently obtained Sec. 52, p. 9a 
 
 Stockholder— 
 
 When, may sue in relation to corporate property and rights 
 
 Sec. 76. pp. 11&-118 
 
 Suits by, to cancel stock subscriptions Sec. 77, pp. 118, 119 
 
 Remedy of, as to stock subscriptions Sec. 77 p. 118 
 
 Subrogation — 
 
 The origin and purpose of Sec. 411, pp. 552, 553 
 
 Who entitled to Sec. 412, pp. 553-556 
 
 Some principles governing the right to Sec. 412, pp. 553-556 
 
 Subject-matter of, must consist in debt Sec. 412, p. 553 
 
 Where purchaser of real estate or other person discharges incum- 
 brances thereon Sec. 413, pp. 556-558 
 
 Of legatees and devisees Sec. 414, p. 558 
 
 With respect to insurance companies Sec. 415, pp. 559 560 
 
 As to indorsers of commercial paper Sec. 416, p 561 
 
 Among joint debtors Sec. 416a, p. 562 
 
 Who not entitled to Sec. 417, pp. 562, 563 
 
 Denied to one guilty of fraud, when Sec. 324, pp. 450, 451 
 
 The doctrine of, derived from civil law Sec. 411, p. 552 
 
 Is the creature of equity Sec. 411, p. 552 
 
 To entitle to, the debt must have been paid Sec. 412, p. 553 
 
 Stranger not entitled to, when Sec, 412, pp. 553, 554 
 
 Voluntary payment of debt does not entitle to Sec. 412, p. 554 
 
 Doctrine of, peculiarly appplicable to sureties Sec. 412, p. 555 
 
 Right of surety to, cannot be impaired, when Sec. 412, p. 555 
 
 Sureties subrogated to all rights of creditor Sec. 412, p. 555 
 
 Rights of surety to, superior to purchaser, when. . . .Sec. 412, pp. 555,-556 
 
 Extends to sureties on sheriff's bond, when Sec. 412, p. 556 
 
 Purchaser of land removing incumbrances thereon entitled to, when, 
 
 Sec. 413, p. 556 
 
 Third party paying lien on land entitled to, when Sec. 413, 556 
 
 Purchaser at judicial sale entitled to, when Sec. 413, p. 557 
 
 Party interested in property discharging lien thereon [entitled to, 
 
 when Sec. 413, p. 557 
 
 legatee same right to, as creditor Sec. 414, p. 558 
 
 When legatee paying debt entitled to Sec. 414, p. 558 
 
 When devisee of real estate pa3dng debt entitled to Sec. 414, p. 558 
 
 No subrogation with reference to life insurance Sec. 415, p. 559 
 
 Fire insurance companies when entitled to Sec. 415, p. 559 
 
 Insurance company must pay amount in full before entitled to 
 
 Sec. 415, p. 559 
 
842 INDBX. 
 
 Surogation — Continued. 
 Right to, by insurance company must be asserted in the name of the 
 
 assured Sec. 415, p. 559 
 
 When right to, by insurance company may be asserted in a court of 
 
 law Sec. 415, p. 560 
 
 Party causing loss by fire not subrogated to any part of insurance 
 
 money Sec. 415, p. 560 
 
 Accommodation indorser entitled to, when Sec. 416, p. 561 
 
 Sheriff pajring a tax not entitled to Sec. 417, p. 562 
 
 Sheriff paying execution in his hands for collection not entitled to, 
 
 Sec. 417, p. 562 
 
 Right of, not enforced to prejudice of third parties Sec. 417, p. 562 
 
 Support and Maintenance — 
 
 Conveyance in consideration of Sec. 51, p. 91 
 
 The amount reserved for, need not be inserted in deed. . . .Sec. 476, p. 635 
 Sureties. (See Principai, and Surety.) 
 
 Contribution among Sees. 64, 390, pp. 107, 521 
 
 When liability in one capacity cannot be shifted to another so as 
 
 to make, liable. Sec. iii, p. 175 
 
 Injunctions in cases of Sec. 259, p. 370 
 
 When equity will indemnify, against action by principal 
 
 Sec. 260, pp. 370, 371 
 
 Marshaling assets and securities among. .: Sec. 317, p. 442 
 
 Surcharging and Falsifying Accounts — 
 Committee of insane person may, of matters in which insane person 
 
 interested. Sec. 123, p. 206 
 
 Of a fiduciary Sec. 160, pp. 251-253 
 
 Of guardian Sec. 224, p. 335 
 
 Tax Deed — 
 
 To remove cloud upon title because of Sec. 46, p. 83 
 
 Plaintiff need not be in possession of land to remove cloud upon 
 
 title of, because of Sec. 46, p. 83 
 
 Plaintiff must offer to repay tax in order to maintain suit to cancel, 
 
 Sees. 60, 323, pp. loi, 449 
 
 Taxes. (See Injunctions.) 
 
 Injunction to restrain the collection of illegal Sec. 263, pp. 372-374 
 
 What must exist to authorize injunction against the collection of 
 
 illegal Sec. 263, p. 373 
 
 Tenants in Common — 
 
 Contribution among Sec. 66, p. 108 
 
 Timber, The Cutting of. (See Injunction.) 
 
 When,- will be enjoined Sees. 237, 239, 240, 476, 545, pp. 350, 351, 
 
 „. , 352. 353, 354, 355, 635, 727 and note. 
 
 Title — 
 
 Where parties hold equitable, who entitled to legal Sec. 321, p. 448 
 
 Rights of parties where one holds legal and other the equitable 
 
 Sec. 322, p. 448 
 
INDEX. 843 
 
 Title — Continued. 
 When purchaser of land at sale of, made by committee of insane 
 
 person acquires no Sec. 123, p. 206 
 
 Presumption as to, in sale of personalty Sec, 170, p. 262 
 
 Trades Unions and Strikes. (See Injunction.) 
 
 Are lawful, when Sec. 278, pp. 384, 385 
 
 When injunctions will be granted with reference to. .Sec. 278, pp. 386, 387 
 Trespass. (See Injunction. ) 
 
 Distinction between, and waste Sec. 238, p. 351 
 
 Injunction to prevent Sec. 240, pp. 354, 355 
 
 What plaintiff must show on face of bill to obtain injunction 
 
 against Sec. 240, p. 354 
 
 What bill must allege to obtain injunction against Sec. 241, p. 355 
 
 Cases wherein injunction to, will lie Sec. 242, pp. 355, 356 
 
 Trusts and Trustees — 
 
 Definition and kinds of trusts Sec. 552a, pp. 737-739 
 
 How an express trust may be created Sec. 553, pp. 739, 74° 
 
 The essentials of an express trust Sec. 553, pp. 740, 741 
 
 Not necessary that a trust be in writing Sec. 553, p. 740 
 
 What trusts are void Sec. 554, pp. 742-745 
 
 Of constructive trusts Sec. 555, pp. 745, 746 
 
 Character of evidence, required to establish a constructive trust 
 
 Sec. 556, p. 747 
 
 Constructive trusts ampng near relatives Sec. 557, pp. 747, 748 
 
 When parole evidence may be used to establish a trust 
 
 Sec. 558, pp. 748-750 
 
 When a party holding property under a will may be charged as 
 
 trustee for another Sec. 559, p. 750 
 
 Precatory trusts Sec. 560, p. 751 
 
 Charitable trusts ^ Sec. 561, pp. 751, 752 
 
 What a sufficient declaration of a voluntary express trust 
 
 Sec. 562, pp. 752-754 
 
 As to the revocation of trusts Sec. 563, pp. 754, 755 
 
 The cancellation of trusts Sec. 564, pp. 755, 756 
 
 Trust estates subject to the debts of the beneficiaries, when 
 
 Sec. 565, p. 756 
 
 The rights and powers of the beneficiary with reference to the trust 
 
 fund Sec. 566, pp. 756, 757 
 
 The statute of limitations as to trusts Sec. 567, pp. 757, 758 
 
 The trustee, his appointment and removal Sec. 568, p. 758 
 
 Title the trustee takes in the trust property Sec. 569, p. 759 
 
 The powers and duty of the trustee as to the trust property 
 
 Sec. 570, pp. 759, 760 
 
 The care and diligence required of trustees in the management of 
 
 the trust property Sec. 571, pp. 760. 761 
 
 The investment of the trust fund by the trustee. ...Sec. 572, pp. 761, 762 
 When purchaser from the trustee must see to the application of 
 
 the trust funds Sec. 573, pp.762, 763 
 
844 INDBX. 
 
 Trusts and Trustees — Continued. 
 
 Following the trust property Sec. 574, p. 763 
 
 Remedies against the trustees for a misapplication of trust prop- 
 erty Sec. 575, pp. 763, 764 
 
 As to the purchase of the trust property by the trustee. .Sec. 576, p. 764 
 
 The accounts and compensation of trustees Sec. 577, pp. 764, 765 
 
 Trustee. (See Deeds OF TRUST, and TruuTS and TRUSTEES.) 
 When, will not be removed from possession or control of property, 
 
 Sec. 138, pp. 221, 222 
 
 Notice to be given by, before making sale of trust property 
 
 Sec. 249, pp. 361, 362 
 
 Duty of, with reference to sale of property under trust deed 
 
 Sec. 249, p. 362 
 
 Cannot sell under trust deed after creditor's suit brought, when, 
 
 Sec. 249, pp. 362, 363 
 
 Cases wherein, has been enjoined from selling trust property 
 
 Sec. 250, pp. 363, 364 
 
 Ultra Vires. (See Corporations.) 
 When stockholders of corporations may sue because of corporate 
 
 acts which are Sees. 76, 78, pp. 116, 117, 119 
 
 When stockholder not injured by acts which are Sec. 78, p. 120 
 
 Where corporation has received the consideration of a contract 
 
 which is Sec. 78, p. 120 
 
 When contract has been fully executed no action can be maintained 
 
 because it is Sec. 78, p. 120 
 
 When act is assailed because it is, the corporation is a necessary 
 
 party Sec. 78, p. 120 
 
 Principle of estoppel does not apply to acts which are, when 
 
 Sec. 100, p. 146 
 
 Definition of the phrase Sec. 100, p. 146 
 
 As to estoppel with reference to contracts executed and executory, 
 
 which are Sec. 101, p. 147 
 
 TJndue Influence — 
 As a ground for the avoidance of written instruments. .Sec. 53, pp. 92-95 
 
 In what cases, usually arises Sec. 53, pp. 92, 93 
 
 What is, so as to relieve from effects of Sec. 53, p. 93 
 
 No fixed or determined rules with reference to Sec. 53, p. 93 
 
 Some general principles with reference to Sec. 53, p. ^ 
 
 When, will be presumed Sec. 53, p. 94 
 
 Proof of acts of Sec. 53, p. 95 
 
 Rules applied in determining Sec. 53, p. 94 
 
 Up-set Bids — 
 
 With reference to judicial sales Sec. 294, p. 409 
 
 No fixed rule with reference to Sec. 294, p. 409 
 
 One present at sale cannot make Sec. 294, p. 409 
 
 How they are offered Sec. 294, p. 410 
 
 Usury — 
 Legal rate of interest and statute relating thereto Sec. 418, p. 564 
 
INDBX. 845 
 
 U sury — Continued. 
 
 What contracts and agreements usurious Sec 419, pp. 564, 565 
 
 What contracts, bargains or agreements not usurious Sec. 420, p. 565 
 
 When interest on interest usurious Sec. 421, p. 566 
 
 When interest on interest not usurious Sec. 421, p. 566 
 
 What law governs as to rate of interest Sec. 422, p. 566 
 
 How interest computed in cases of partial payments Sec. 423, p. 567 
 
 Application of usurious interest to liquidation of principal debt 
 
 Sec. 424, pp. 567, 568 
 
 How and by whom defense of, may be made Sec. 425, pp. 568, 569 
 
 The payment of usurious interest may be recovered back, and how, 
 
 Sec. 426, pp. 569, 570 
 
 As to the proof of Sec. 427, p. 570 
 
 The calculation of interest in the entry of a decree. .Sec. 428, pp. 570, 571 
 
 Estoppel cannot prevent inquiry into Sec. 104, p. 154 
 
 Vendor — 
 Representations of, in sale of land as to quantity thereof 
 
 Sec. II, pp. 20, 21 
 
 Payment for excess of land beyond what called for in contract or 
 
 deed, when may be required by Sec. 13, pp. 21, 23 
 
 Cases wherein abatement will be made against, on sale of re«l estate. 
 
 Sec. 5. p. II 
 
 Lien of on sale of real estate Sec. 523, pp. 705, 706 
 
 Equitable lien of, on sale of real estate Sec. 524, pp. 706, 707 
 
 Release of lien of Sec. 525, pp. 707, 708 
 
 Waiver of lien of Sec. 525, pp. 707, 708 
 
 Lien of, on sale of equitable title Sec. 526, p. 708 
 
 Time within which lien of, may be enforced Sec. 526, 517, 708, 709 
 
 Bill to enforce lien of Sec. 528, pp. 709, 710 
 
 As to enforcement of lien of Sec. 529, pp. 710, 711 
 
 Voluntary Conveyance — 
 
 When, may be assailed by creditors of grantor Sec. 192, pp. 297-299 
 
 Vouchers — 
 
 To be laid before commissioner in settlement of accounts of fidu- 
 ciary Sec. 153, p. 246 
 
 To be produced by guardian, when Sec. 220, p. 331 
 
 Waste. (See Injttnctions. ) 
 
 What constitutes Sec. 236, p. 349 
 
 Injunction to restrain Sec. 236, p. 349 
 
 Who may maintain injunction against its commission See. 237, p. 350 
 
 Distinction between, and trespass Sec. 238, p. 351 
 
 Cases wherein injunction will be awarded to stay Sec. 239, pp. 352-354 
 
 Wills- 
 Equity jurisdiction as to the contest of Sec. 429, pp. 572, 573 
 
 Manner of contesting, and form of issUe to be directed Sec. 430, p. 573 
 
 Trial by jury in court of equity Sec. 430a, pp. 573, 574 
 
 Who may bring suit to contest Sec. 431, PP- 574, 575 
 
846 INDEX. 
 
 Wills — Continued. 
 
 Parties defendant in suits to contest Sec 432, p. 575 
 
 Who to be plaintiff and who defendant in issue to contest validity 
 
 of Sec. 433, p. 576 
 
 Contest of, a proceeding inter partes Sec. 434, p. 576 
 
 When contest is decided, functions of suit exhausted Sec. 435, p. 577 
 
 May be good in part and void in part Sec. 436, p. 577 
 
 Equity jurisdiction as to lost Sec. 437, pp. 577, 578 
 
 Proof required in cases of lost Sec. 437a, pp. 578, 579 
 
 Usual mode of making provision for wife in lieu of dower is by 
 
 Sec. 96. p. 138