Opinion.

under decree of the circuit court of Campbell county, in 1872, in the suit of Betterton . Hobson, for distribution among the heirs of his father. J. W. Hobson became the purchaser, making a cash payment of $200, and executed his bonds, in one, two, three and four years, for the residue of the purchase money, with E. M. Hobson as his surety; which said bonds were never paid, the said estate being purchased by a member of the family, was, apparently, treated by the family as if there had been no sale for division. J. W. Hobson and E. M. Hobson are brothers; they each married sisters, and sisters of W. J. Betterton; so that the kinship of the family is very close, their interests nearly allied, and the shifting of property among themselves very frequent, as shown by the record.

In 1876, W. J. Betterton conveyed by deed all his aforesaid interest in his father's estate and mill-property, along with all his unsold interest in the Whitlow lands purchased by his mother, to one J. W. Herndon, in consideration that the said J. W. Herndon, amongst other things, would "pay the balance of the purchase money due upon the Whitlow tract of land, and for which said Betterton is liable, as surety;" the said Herndon assuming in said deed the said indebtedness of said Betterton, and one of the considerations moving from said Herndon in said deed being the assumption by him of the debt due by Betterton on the Whitlow tract of land.

In 1877, W. J. Betterton became a bankrupt, and in his schedules made no mention of or reference to the Whitlow debt, manifestly because the payment of the Whitlow debt had been transferred to and assumed by J. W. Herndon as aforesaid. In March, 1878, W. J. Betterton was duly discharged as a bankrupt; and on the 3d day of May, 1878, he, with J. W. Betterton, repurchased of J. W. Herndon all the said interest in the Betterton estate, but made no reference to the Whitlow lands; except that W. J. Betterton, in the contract of purchase, undertook to release Herndon from his said covenant to pay the

Opinion.

Whitlow debt, which had attached as an equitable lien to the said interest, by his conveyance to Herndon for the benefit of the Whitlows before his act and passage through bankruptcy.

On the 2d of August, 1879, W. J. Betterton, J. N. Betterton and E. R. Betterton sold and conveyed all said interest in the Betterton estate, along with E. R. Betterton's separate interest, to appellants, Bettie L. Hobson and E. M. Hobson, who had notice of, and were fully conversant with, the said stipulations and covenants contained in the deed from W. J. Betterton to J. W. Herndon, expressly charging the said interests conveyed to J. W. Herndon in equity, with the payment of the Whitlow debt.

Upon the hearing of the cause, the circuit court pronounced its decree of October 28th, 1882, which is the decree appealed from, declaring that "the legal effect of the deed of the 28th November, 1876, from W. J. Betterton to J. W. Herndon, filed as exhibit F., whereby the consideration moving to the said Herndon in the subjects conveyed, as should be necessary for the purchase, was dedicated for the payment of the bonds which said W. J. Betterton was bound for in the suit of Maddox es. Whitlow, was to create an equitable lien upon the subjects and in favor of the beneficiaries of the fund represented by these bonds; and, therefore, the said Herndon, to that extent, was a trustee of the said subjects for their benefit; and the same in his hands, and in the hands of the defendants, E. M. Hobson and B. L. Hobson, claiming under him, with express notice, is liable in equity to be subjected to the satisfaction of the said lien."

In this opinion of the circuit court we fully concur. Those interests passing to the Bettertons, and from them to the Hobsons, all having notice of the conditions and stipulations of the deed from Betterton to Herndon, and claiming their title and interest under that deed, which they admit, the property in their hands are chargeable with the equitable lien of the Whit

Opinion.

low debt, exactly and to the same extent that they were so chargeable in the hands of the first grantee, J. W. Herndon.

The appellants were acquainted with the transaction and stipulations of the deed between W. J. Betterton and J. W. Herndon, and claim under that deed: they are affected with all the equities appearing upon it.

Story's Equity Jurisprudence, section 533, says: “if we advert to the cases on the subject, we shall find that trusts are enforced not only against those persons who are rightfully possessed of the trust property as trustees, but also, all persons who come into possession of the property bound by the trust, with notice of the trust." "A purchaser, or grantee, who has notice of the trust, at the time of his purchase, becomes himself a trustee, notwithstanding the consideration he has paid. The vested interest of a cestui que trust cannot be impaired or destroyed by the voluntary act of the trustees." 4 John. Ch. R. 136; Shepherd v. McIver, 3 John. Ch. R.

The case at bar is ruled by the cases decided in this court, of Vanmeter's ex'or v. Vanmeters, 3 Gratt. 142, and William & Mary College v. Powell, 12 Gratt. 372.

We find no error in the decree complained of, and the same must be affirmed.

DECREE AFFIRMED.

Syllabus.

Staunton.

MASSIE'S ADM'R V. HEISKELL'S TRUSTEE & ALS.

SEPTEMBER 24TH, 1885.

1. DEEDS-Construction - Case at bar.-The construction of the deeds of conveyance from H. to P. and from P. to S. and P., passed into res judicata by the decision of this court in this cause when it was here in 1879. Preston and Massie v. Heiskell's trustee, 32 Gratt. 48.

2. MISTAKE-Equitable relief.—It is one of the original grounds of equity jurisdiction to amend an instrument made under a mutual mistake of fact, so as to do justice to all concerned, and place them as nearly as practicable in statu quo. And it matters not whether the mistake was as to the factors, the mode, or the result of the calculation.

3. IDEM-Equity does nothing by halves.-Where, under mutual mistake of fact, vendor grants more than vendee bargained or paid for, and a court of equity affords relief upon vendor's prayer, by allowing him compensation for the excess, his claim for such compensation is not a mere personal demand against vendee, but the title is deemed to be still in vendor as to such excess as security for the payment of said compensation, although the deed, as executed, reserved no lien for the purchase money.

4. IDEM-Purchasers for value without notice-Set-offs-EncumbrancesWarranty.-Vendee, to whom, under mutual mistake of fact, vendor has conveyed more than was bargained or paid for, cannot be regarded, as to such excess, as a purchaser for value without notice. But against vendor's claim for compensation for such excess, vendee may set off any counter-claim he may have for money expended by him in clearing the property of encumbrances existing thereon when the conveyance was made. Vendee's right to set off such counter-claims, is not founded on the idea of a breach of warranty, and is not affected by the question whether the warranty of the vendor was general or special, but rests on the principle that "he that asks equity must do equity."

Syllabus-Statement.

5. STATUTE OF LIMITATIONS-Mistake, &c.-Discovery.-Cases of fraud, trust and mistake, are not within the statute of limitations. Hunter v. Spottswood, 1 Wash. 145. At all events, in equity, in cases of mistake, as in cases of fraud, the statute does not begin to run until the discovery of the mistake. Rowe v. Bentley, 29 Gratt. 760.

6. MISTAKE-Presumption of payment.-Claim for purchase money for excess of land conveyed under mutual mistake of fact, is unaffected by any lapse of time short of the period sufficient to raise the presumption of payment. And the existence of deeds conyeying title and reserving no lien, cannot reduce the period of limitation to five years, because the averment and proof of the mistake, required the abrogation of the deed, at least quoad the purchase money for the excess over what was sold and paid for.

7. LACHES-Abandonment of rights.—It is well settled that laches cannot be predicated of those who are ignorant of their rights. Such defence is only permitted in equity to defeat an acknowledged right, on the ground of its offering evidence that the right has been abandoned. Nelson v. Carrington, 4 Munf. 332-43.

Argued at Wytheville, and decided at Staunton.

This is an appeal from a decree of the circuit court of Washington county, rendered on the 25th day of February, 1884, in the cause of D. Trigg, trustee of W. K. Heiskell, against W. A. Stuart, G. W. Palmer, T. L. Preston, Holston Salt and Plaster Company and N. H. Massie; and the cross-cause of N. H. Massie and T. L. Preston against Trigg, Stuart & Palmer, and said company.

This cause is a sequel to the cause of Preston and Massie v. Holston Salt and Plaster Company, 32 Gratt. 48, where its history is fully detailed. Only such outline will be here set forth as is essential to comprehend the points decided.

By deed of November, 1858, Heiskell conveyed to Preston all his right, title and interests, legal and equitable, in and to King's Salt Works estate, including the Hunter, 1-24, and the then Claiborne interests, stated to be 2-540 each, of the whole.

By deed of July, 1859, Preston conveyed all of his property, including his interests in King's Salt Works estate to Gibbony,