Norfolk Trust Co. v. Foster

Citations

• 78 Va. 413
• 1884 Va. LEXIS 17

Syllabus

<p>1. Real Estate—Boundaries.—It is well settled that where the courses and distances vary from the natural boundaries set forth in the deed, the latter prevail over the former.</p> <p>2. Idem—Sales—Hazard—Per acre.—Intention of the parties, as shown from terms of contract and circumstances, decides as to whether saléis one of hazard. Equity does not favor such sales, and the presumption against them is repellable only by clear and cogent proof. It must clearly appear that the sale is not per acre.' Where a tract is sold for a gross sum upon estimate for a given quantity, it is presumed that the sale is per acre.</p> <p>3. Case at bar.—Sale here held to have been per acre, and vendee entitled to compensation for deficiency.</p> <p>4. Equitable Jurisdiction and Relief—Case at bar.—Land of S was sold under decree to satisfy judgment. Before rendition whereof F had bought of S adjoining land, supposed to contain 200, but only containing 162 acres. Before sale under decree F communicated these facts to commissioner of sale, and claimed to have deficiency supplied out of the land commissioner was ordered to sell, and to compel this he brought suit, making commissioner and others parties.</p> <p>Held :</p> <p>1. Equity will entertain F’s suit and decree him the deficiency of land, or, at his option, the money for which it was sold.</p> <p>2. F might have had some relief by filing petition in the suit under decree wherein the land was sold, but that fact was no bar to an independent suit for that purpose.</p> <p>5. Idem—Final decree.—A decree settling the rights of the parties, providing for payment of costs, and leaving nothing to be done “in the cause,” is a final decree.</p> <p>6. Idem—Bill of review—New matter.—Bill of review for new matter must not only set out the discovery of the new matter after the decree and state the nature thereof, but must be accompanied by affidavit that it could not have been discovered by reasonable diligence in the original cause.</p> <p>7