Morgan v. Glendy 1

• Citation: 22 S.E. 854,92 Va. 86
• Parties: MORGAN. v. GLENDY et al.1
• Decision Date: 08 August 1895
• Court: Virginia Supreme Court

22 S.E. 854

92 Va. 86

MORGAN.

v.GLENDY et al.¹

Supreme Court of Appeals of Virginia.

Aug. 8, 1895.

Vendor and Purchaser—Enjoining Collection of Purchase Monet—Cloud on Title.

1. Enforcement of a trust deed to secure payment of the purchase money of land will not be enjoined by reason of an ineffectual deed in the chain of title, where a deed perfecting the title is given.

2. Though a deed in trust to secure the trustees and other creditors was in effect a mortgage, and should have been foreclosed by suit, still the trustees having sold and deeded the land, with the knowledge of the creditors, all of whom participated in the proceeds, and the action of the trustees having been ratified by a deed of the maker of the trust deed, the trustees' grantee got the legal title; and collection of purchase money by the trustees' grantee from one to whom he sold the land will not be enjoined, at the suit of such purchaser, ou the ground of a cloud on the title, notwithstanding it does not affirmatively appear that the last payment due on the sale by the trustees was distributed among the creditors, they, having slept on their rights for 20 years, with knowledge of all the facts, and allowed rights of others to intervene, and their conduct being unexplained, and therefore amounting to laches, barring claim against the land.

Appeal from circuit court, Pulaski county; Williams, Judge.

Suit by Joseph Morgan against J. W. Glen-dy and others for injunction. Decree for re-fendants. Complainant appeals. Affirmed.

Phlegar & Johnson and Gardner & Wharton, for appellant.

I. H. Larew and J. C. Wysor, for appellees.

KEITH, P. J. W. Glendy conveyed to Joseph Morgan, on the 25th day of March, 1893, a tract of land containing 300 acres for $10,000, all of which has been paid except the last installment, for $3,000, due on the 31st day of August, 1893, which was secured by a deed of trust from Joseph Morgan to I. H. Larew, trustee. This land was originally owned by I. N. Naff and wife, who conveyed it to J. K. Miller and J. D. Noble in trust, to sell at public auction, and pay certain creditors of Naff, and to pay the balance, if any, to Naff and wife. On the face of the deed from Naff and wife, it appears that "Cynthia M. Naff is seised in fee of more than one-half of the real estate" thereinconveyed, and that she agreed to unite with her husband, and in consideration thereof she was to be paid the sum of $2,500 out of the proceeds of sale. It was further agreed that J. K. Miller and J. D. Noble, who were themselves creditors, and the other persons whose names and seals are subscribed and set to said deed, should execute a release to Isaac N. Naff of the several debts secured to them. Miller and Noble advertised the land for sale, and J. K. Miller, one of the trustees, became the purchaser. Subsequently, in order to clear the title of the cloud occasioned by the purchase by trustee at a sale made by himself, Miller and Noble conveyed to W. J. Glendy, who immediately reconveyed to J. K. Miller, and Miller afterwards conveyed the land to J. W. Glendy, who, as before mentioned, conveyed to Morgan. When the note for the deferred payment of $3,000 became due, the trustee I. H. Larew advertised the land for sale, and thereupon Morgan presented a bill for an injunction to the judge of the circuit court of Pulaski county, in which he sets out the title above recited, and alleges various defects therein, only two of which need be adverted to. As has been seen, a part of this land was owned in fee by Mrs. Cynthia M. Naff, who united with her husband in the deed to Miller and Noble. That instrument, however, was ineffectual to pass the title out of her, because the acknowledgment thereto...