41 S.E. 957 (Va. 1902), Hardaway v. Jones

Citation:41 S.E. 957, 100 Va. 481
Opinion Judge:Buchanan, J.
Party Name:Hardaway v. Jones
Attorney:J. Norment Powell, E. M. Fulton and R. T. Irvine, for the plaintiff in error. O. M. Vicars, for the defendant in error.
Case Date:June 26, 1902
Court:Supreme Court of Virginia
 
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Page 957

41 S.E. 957 (Va. 1902)

100 Va. 481

Hardaway

v.

Jones

Supreme Court of Virginia

June 26, 1902

Error to a judgment of the Circuit Court of Wise County, rendered December 7, 1901, in an action of detinue, wherein the defendant in error was the plaintiff, and the plaintiff in error was defendant.

Reversed.

SYLLABUS

The deed of trust copied into the opinion of the court was not acknowledged till August 5, 1901, and was recorded August 8, 1901. The mules were sold September 5, 1901. These mules had never been in the actual possession of the trustee, and all of his right, title and interest in, and powers over, them were derived from the deed of trust aforesaid. No question was raised as to the right and power of the trustee to maintain the action, except on the ground of insufficient description. The defendant also denied the right of the plaintiff to recover damages for the detention of the mules.

J. Norment Powell, E. M. Fulton and R. T. Irvine, for the plaintiff in error.

O. M. Vicars, for the defendant in error.

OPINION

Buchanan, J.

[100 Va. 482] On the 27th day of March, 1901, Rufus Fields executed a deed of trust to John Jones, trustee, to secure a debt due the Stony Creek Lumber Company, in the following words:

"This deed of trust made and entered into on this the 27 day of March, 1901, between Rufus Fields of the first part; John Jones, trustee, of the second part, and the Stony Creek Lumber Co., Inc., of the third part, witnesseth, that, whereas, the said Rufus Fields, party of the first part, is indebted to the said company in the sum of seven hundred and thirty-one and 4-100 dollars, and to secure the payment thereof, and also to secure the payment of any other sums which may hereinafter be advanced by said company to the party of the first part, over and above what may be justly due to the party of the first, he hereby sells to the said John Jones the following property, to-wit:

Two

Page 958

log wagons)

Four mules)

Two horses) & all chains.

grabs,) See Exhibit A.

hooks, etc.,)

that he now owns.)

"In trust, nevertheless, to secure to said company the said sum [100 Va. 483] or sums of money. And if the said party of the first part shall fail to pay the said company by the first day of July, 1901, what may be due it, then the said John Jones, trustee, is hereby authorized and empowered to...

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