his said rights of way and have a public road established for his own
exclusive use, and to the great damage of G., over G.'s land in an-
other direction to a public highway. Idem.
1. Adverse claimant.—But under Code 1873, chapter 131, sections 4 and
5, the proper remedy is by an action of ejectment, where the owner
holds the legal title, but has not actual possession, and another as-
serts an adverse claim to the land, but has not actual possession of it.
In such case equity has no jurisdiction. Stearns v. Harman, 48.
Municipal corporations—Condemnation of land. Roanoke City v. Berko-
witz, 616.
Warranty-Purchaser for value without notice-Set offs. Massie v. Heis-
kell, 789.
EQUITABLE JURISDICTION AND RELIEF.
1. Quia timet-Cloud on title.-On the principle of quia timet, a court of
equity will entertain a suit by the owner in possession of land, to re-
move a cloud from his title, by annulling a deed that, by mistake or
fraud conveys the land to another, who makes adverse claim thereto,
but brings no suit. Stearns v. Harman, 48.
2. Ejectment-Adverse claimant.-But under Code 1873, chapter 131,
sections 4 and 5, the proper remedy is by an action of ejectment,
where the owner holds the legal title, but has not actual possession,
and another asserts an adverse claim to the land, but has not actual
possession of it. In such case equity has no jurisdiction. Idem.
3. Trustee and feme covert c. q. t.—Improvement of trust subject-Defect
of care and skill-Remedy.-Where a trustee and his feme covert
c. q. t., jointly undertake to improve the lot held by him in trust for
her separate use, and in so doing fail to use due care and skill,
whereby the owner of the adjacent land is damaged, a court of equity
hath jurisdiction to ascertain and allow the claims of the injured party
for compensation, and to subject the trust property to its satisfaction—
either because of the trust, or because of the separate estate involved
in the litigation-each being equally a subject of equity jurisdiction.
Salamone v. Keiley, 86.
4. Parol evidence-Correcting mistakes.-There can be no question as to
the power and duty of courts of equity to reform a written instrument
between living parties and for a valuable consideration, on account
of a mistake of the draftsman, though proven by parol evidence;
EQUITABLE JURISDICTION AND RELIEF (continued).
but not where the party seeking to reform the writing is a mere vol-
unteer, and the other party is dead. White v. Campbell, 180.
5. Remedy at law.-Where there are conflicting claims to personal prop-
erty, possessing no pretium affectionis, the remedy is adequate at law,
and equity will not take cognizance of the case, though one of the
parties be a trustee, claiming the property under a trust-deed.
Moore v. Steelman, 331.
6. Injunction-Irreparable injury.-Where irreparable injury is imminent,
against which there is no adequate protection at law and which is not
compensable in damages, equity will take jurisdiction by injunction.
The bill must set up the facts which exhibit the imminence and irre-
parableness of the injury.
7. Injunction-Dissolution.-Where the answer denies all the grounds of
equity set up in the bill, and those grounds are unsustained by proof,
the injunction must necessarily be dissolved. Idem.
8. Case at bar.-Under decree in creditor's bill, filed in 1870, the debtor's
real estate was sold in parcels. To G. and to L. each, a distinct par-
cel was sold and conveyed by defined bounds. The suit was dis-
missed in 1876. Four years afterwards, L. having got possession of
thirty-two acres of the parcel conveyed to G., the latter brought un-
lawful detainer to recover it; and L., without the said suit having
been restored to the docket, filed therein against G. his petition, and
obtained an injunction restraining proceedings under the unlawful de-
tainer, on the ground that a mistake had been made in the convey-
ance to him, whereby said thirty-two acres had been omitted from
his, L.'s, boundary. G. objected to the filing of the petition, demur-
red to it, and answered it, denying all fraud, and that L. had got all
the land he had bought, and the contrary thereof was not established
by L., but the circuit court overruled the objection and demurrer, and
decreed that G. should convey to L. the said thirty-two acres. On
appeal,
1. The objection to the filing of the petition in the cause which had
been dismissed, should have been sustained.
2. The demurrer to the petition as an original bill, should have been
sustained, as it was without equity, there being no privity be-
tween L. and G.
3. If L. had any remedy, it was at law, against the commissioners who
made the sale and conveyance to him; or in chancery, against
the creditors of M., who participated in the proceeds of the sales
of his lands.
4. Upon the merits, L. had no case, as he did not show that he had not
received, apart from the thirty-two acres, as much land as he had
bought. Garnett v. Loven, 456.
EQUITABLE JURISDICTION AND RELIEF (continued).
9. Wife's land-Joint sale-Trust.-Where wife joins with husband in
conveying her land on condition that proceeds be applied to pay-
ment of a debt binding her children's land, a trust is thereby cre-
ated, which a court of equity will enforce against husband, though
the bonds for said proceeds be made payable to him. Barnes v.
Trafton, 524.
10. Charitable uses-Common law—43 Elizabeth— Act of 1839.—At com-
mon law chancery courts had jurisdiction to enforce bequests for
charitable uses. Statute of 43 Elizabeth did not confer such juris-
diction, but only created an auxiliary remedy by commission, &c.
Said statute was local, and never in force here. But if it was general
in its operation in some respects, it was not repealed by the Act of
1792, but in those respects was preserved by the saving clause of
that act. In any event, the Act of 1839, (Code 1873, chap. 77,) clearly
validates and makes enforceable all gifts for such purposes, subject
to certain restrictions therein contained. P. Episcopal Education
Society v. Churchman's rep's, 718.
11. 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. Massie
v. Heiskell, 789.
12. 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 on
the purchase money. Idem.
13. Resulting trusts-Liens-Set-offs-Case at bar.-From ancestor's estate
there were shares going to I., to J., to P. and to P.'s ward. I. and P.
jointly purchased land, and used all the shares in paying for it. Then,
I. sold to P. her half of the land, and for part of the price took three
bonds of P., with J. as surety, payable to I.'s husband, who assigned
them for value to S. T. and B. In a creditor's suit to ascertain debts
and liens against P.'s estate-
1. P.'s ward has a paramount lien on the entire land to the extent his
share was used in paying for it.
2. J. has an equal lien with P.'s ward, on the entire land to the ex-
tent his share was used in paying for it, unless the transaction
EQUITABLE JURISDICTION AND RELIEF (continued).
between P. and J. as to this use of J.'s share, made P. individu-
ally the debtor therefor to J., and destroyed his lien.
3. But if such lien remains in favor of J., he is entitled to set off the
amount thereof pro tanto, against the bonds of P. and himself to
I.'s husband, in whose hands soever they may be found. Paxton
V. Stuart, 873.
1. Written evidence-Parol. A party to instruments in writing, in the
absence of all pretence of fraud, is estopped from proving that he did
not read the instruments before executing them, and thus by parol
obviate the effect of written evidence. Ware v. Starkey, 191.
2. Warranty of title.-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. The warrantor is estopped
from denying he had the title. Gregory v. Peoples, 355.
3. Bankruptcy-Estoppel.-A discharge in bankruptcy releases the war-
rantor from liability for covenants broken, but does not affect the
estoppel, because the covenant runs with the land. Idem.
4. Idem Resulting trust.-Where one having only the equitable title,
conveys the land with general warranty; then is discharged in bank-
ruptcy; and afterwards, with another's money, buys the land, at a re-
sale thereof for the unpaid purchase money, and obtains to himself a
conveyance thereof, such title does not enure to his grantee, and he
is not estopped to deny he had the title, because a trust resulted in
favor of him whose money bought the land. Idem.
5. Assignor and assignee-Silence.-Where, after notice of assignment,
debtor expressly or impliedly promises to pay the debt, he is estopped
from setting up any defence he had against assignor. Mere silence
will not operate such estoppel. Stebbins & Lawson v. Bruce 389.
6. Joint-stock companies-Stockholders.-Where a vendor's lien exists on
the real estate of the corporation, represented by a past due note,
and the stockholders agree with the creditors of the corporation,
that the latter shall give the corporation further time, the corporation
will satisfy the vendor's lien, and convey its property free from liens,
in trust to secure those creditors, and one of the stockholders shall
satisfy that lien and take an assignment thereof to himself, he is es-
topped from claiming that lien as his own property, and an assignee
from him without notice, if the note be past due, or an assignee from
him with notice, if the note be not past due, stands in no better posi-
tion than his assignor; and the trust deed lien of the creditors hath
precedence. Hardy v. Norfolk Manufacturing Co., 404.
7. Res judicata-Parol evidence.-Where judgment or decree is relied
on as estoppel, and pleadings and proceedings in former suit leave
it doubtful what was the issue, or state of facts whereon the judgment
or decree was rendered, parol eyidence is admissible in subsequent
suit to show what was actually in issue and determined by former
suit. Withers' adm'r v. Sims, 651.
8. Res judicata-Estoppel.—All matters presented and received, or pre-
sentable to sustain the particular demand litigated in prior suit, and
all matters presented or presentable under the issue to defeat such
demand, are concluded by the judgment or decree in the former suit.
Idem.
1. Criminal Proceedings-Lascivious cohabitation.—To sustain an indict-
ment under sect 7, chap. 7, Criminal Procedure of 1878, page 302, the
evidence must establish that the parties, not being married, lewdly
and lasciviously associated and cohabited--that is, lived together in
the same house as man and wife live together. Jones' case, 18.
2. Committee of Lunatic-Witnesses competency-Re-examination of wit-
nesses-When. Carter v. Edmonds, 58.
3. Torts-Damages. In mitigation of damages, in an action for false
imprisonment, it is allowable on cross-examination to prove that the
plaintiff had boasted that he had gained a great reputation from his
arrest and imprisonment. Johnston v. Moorman, 131.
4. Post-admissions of assignor.-A letter written by a distributee, after
assigning his share of the estate, is not admissible as evidence for
any purpose in suit to settle the estate. Strother v. Mitchell, 149.
5. Estoppel-Written evidence-Parol.-A party to instruments in writ-
ing, in the absence of all pretence to fraud, is estopped from proving
that he did not read the instruments before executing them, and thus
by parol obviate the effect of written evidence. Ware v. Starkey, 191.
6. Extrinsic.-Where a written contract is perfect in itself and its terms
are clear and intelligible, parol testimony is inadmissible to contra-
dict, vary, or materially to affect it by way of explanation. Hughes
v. Tinsley & Bro., 259.
7. Criminal practice.-Evidence that the hands, knife, &c., of the pris-
oner were smeared with blood immediately after the homicide, is ad-
missible, though there was no chemical analysis. Barbour's case,
287.
8. Idem-Idem-Cumulative.-After the argument has commenced, it is
too late to admit mere cumulative evidence. Idem.
9. Idem-Counsel-Prisoner's statement.--Much latitude is allowed coun-
sel in argument, but they should not relate to the jury the prisoner's
version as the statement of the accused, where the latter could not
himself testify. Idem.
10. Fraud-Proof.-The evidence of fraud must be sufficient to satisfy the
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