THE

Southeastern Reporter.

VOLUME X.

made a part of the record, in which he just debts of the testator, provides: "I wrote that he had arranged with Mrs. Mc- will and desire that my wife, Rebecca, shall Bride for the payment of the Wright and have and hold all my estate during her Cummins debts; for what is meant by this natural life, for the benefit of herself and is explained in the master's report, where- children, to be used as she may think propin it is stated that the arrangement consist- er." The testator left surviving him his ed in taking Mrs. McBride's individual wife, Rebecca, and eight children,-two bonds for the debts, which, as receiver, he sons and six daughters, all infants, and had no authority to do, and which, there- most of them of tender age. He owned no fore, could not be considered as payment, real estate; and his personal property, at or its equivalent, even had he, in taking his death, consisted of a fund of $900, which, the bonds, assumed to act as receiver. It as tenant of rented land, he had managed is settled law that an attorney at law has by industry and frugality to save and acno authority to commute a debt in his cumulate, over and above the maintenance hands for collection, without the assent of of his large family. It was the aim and his client; a fortiori has a receiver of a desire of his life to purchase a home for himcourt no such authority. Smock v. Dade, self and family; but, called away by death 5 Rand. (Va.) 639; Wilkinson v. Holloway, before having done so, he enjoined it upon 7 Leigh, 277. But, even if it were conceded his wife to accomplish his purpose with the that all the claims in question were collected means which he had provided therefor. On by Steele, still there is no proof, as the appel- the 16th day of March, 1848, less than a lees contend, that he ever passed the pro- year after the death of William Johns, ceeds from himself as attorney to himself there was conveyed to his widow, Rebecca as receiver; and this it was incumbent on Johns, by an absolute fee-simple deed, a the appellant to show, to maintain her po- tract of land, containing 100 acres, situate sition. Without something to show an in Augusta county, for the price of $1,500, election, on his part, to hold the money in receipted for in full in the said deed, from his character as receiver,-such, for exam-Jacob Perry and wife to the said Rebecca ple, as charging himself with it on his re- Johns. ceiver's account, or entering it as a credit on the appellant's bonds,-he continued chargeable with it as attorney, and to hold it subject to the appellant's order; and the responsibility therefor cannot be shifted to the sureties in his receiver's bond, whose rights are concerned, although they are not formal parties before the court. This is well settled. Pratt v. Northam, 5 Mason, 95; Swope v. Chambers, 2 Grat. 320; Stovall v. Banks, 10 Wall. 583. The appellant's exception to the master's report was therefore rightly overruled, and the decree must be affirmed.

JOHNS' Adm'r v. JOHNS' ADM'R et al. (Supreme Court of Appeals of Virginia. Sept. 17, 1889.)

CONSTRUCTION OF WILLS-NATURE OF Estate.

A testator's bequest of all his funds to his wife for life, for the benefit of herself and children, "to be used as she may think proper, " means only such use as is consistent with the life-estate given, and an investment of such funds in land gives testator's wife only a life-estate therein, remainder over to testator's heirs in fee, free from

The controversy between the appellant and the appellees is whether this land, either wholly or in part, belonged to Mrs. Rebecca Johns in fee-simple, or for her natural life only, with remainder to the heirs at law of William Johns in fee. There are two questions involved in this appeal,one of fact, and one of law. The question of fact-whether the whole of the $1,500 purchase money paid by Mrs. Rebecca Johns for this land was of the personal estate left by her husband, or how much thereof was so derived-was referred to a master commissioner, who made elaborate inquiry, and reported, upon evidence certified in the record, that the $900 left by William Johns, and only that much of his estate, went into the purchase and payment for the land; and the circuit court sustained the commissioner's finding and report as to this point. We think that the circuit court did not err as to this question of fact, and that it correctly overruled the exception of appellees to the master's report as to this. The question of law, involving the construction of William Johns' will, was decided by the circuit court, in the decree appealed from, that the widow, Rebecca Johns, took under the will of the testator, William Johns, only a life-estate in the fund left by him, which life-estate was terminated by her death; and that the corpus of the said fund, embodied, to the extent of FAUNTLEROY, J. This is an appeal from $900, in the land in question, devolved by a final decree of the circuit court of Augusta | law upon the children and heirs at law of county, rendered on the 6th day of June, William Johns, free from the debts of the 1887, in a chancery cause pending therein life-tenant, Rebecca Johns, deceased. We under the style of "Johns' Administrator, think it plain, from the language of the A. J.,vs. Johns' Administrator, R., et als." clause of the will under construction, taken The facts of the case presented by this rec- as an expression of the testator's intenord are that William Johns died at his tion, that it does not import an absolute home, in the county of Augusta, in the estate to his wife; but does give to her, in summer of 1848, leaving his will, dated express and apt words for the purpose, May 8, 1848, which was admitted to pro-"all my [the testator's] estate during her bate in the county court of Augusta county at the August term, 1848. The said will is very short, and, after providing for the payment of the funeral expenses and the

her debts.

Appeal from circuit court, Augusta

county.

Craig & Curry, for appellant. T. C. Elder and White & Gordon, for appellees.

natural life, for the benefit of herself and children, to be used as she may think proper." The discretionary usufruct of the fund during life means such a use as is consistent

with the life-estate expressly given; and the words used to express it cannot be seized upon by a technical finesse of the law, to enlarge the life-estate given into an absolute estate, and thereby defeat the well-expressed and manifest intention of the testator. The added words, "to be used as she may think proper,' do not make or create a limitation over, inconsistent with the first estate given; nor do they, necessarily or reasonably, mean or implicate such a use of the property as would consume it, or empower it to be disposed of beyond the life-estate. This case does not fall within the ruling or rationale of the cases of May v. Joynes, 20 Grat. 692, nor of Rhett v. Mason, 18 Grat. 541. In the case of Randolph v. Wright, 81 Va. 608, Judge LACY says that the case of May v. Joynes is authority for itself alone; and commenting upon the cases of Riddick v. Cohoon, 4 Rand. (Va.) 547; Burwell v. Anderson, 3 Leigh, 348; Melson v. Cooper, 4 Leigh, 408; Brown v. George, 6 Grat. 424; Cole v. Cole, 79 Va. 251; Carr v. Effinger, 78 Va. 197, he shows that in all these cases, either expressed or by necessary implication, authority was conferred on the first taker of the estate to consume it or dispose of it absolutely; but in the case under consideration the words, “to be used as she may think proper," are only apt and proper words to describe the use of the life-estate given to Mrs. Johns by the clause of which they are a part. We find no error in the decree of the circuit court of Augusta appealed from, and are of opinion to affirm the same. Affirmed.

per week. This furnace had been run for a number of years, and the ore, charcoal, and timber necessary for its operation had been taken from different parts of the said 10,000-acre tract. In the year 1855 Bryan ceased to operate the furnace, and conveyed the same as stated. The trustees divided the tract into 15 different tracts of land, and No. 6 was sold to Lilly, and passed by regular chain of title to the appellants. No. 11 was sold to John and Isaac Newton, and by them to John, David, and Andrew J. Zink, in part, and the residue sold by judicial sale to the appellees, it being about 44 acres, and containing the old furnace site. The furnace has long been a thing of the past, and it would be difficult to discover the spot where it once stood. In the deed to lot No. 6 the following language appears: "(1) Subject to the right of the owners of Cotopaxi furnace to raise ore from a bank or banks on lot No. 6. (2) To use the road leading to said iron ore bank or banks for hauling ore from said banks to said furnace," "which rights were reserved at the time of the sale, and are hereby reserved to the owner of the said furnace.' The appellees, owners of the furnace site, are engaged in hauling large quantities of iron ore from the ore banks on lot No. 6, and sending it away for sale, claiming to be the absolute owners in fee of the said ore banks. The appellants contend that the reservation in the deed to them creates only an incorporeal hereditament, to be enjoyed in common with the owners of the feesimple, when taken in its broadest sense; and that under the circumstances of this case, it is still more limited, and is restricted to the right to haul ore to the Cotopaxi furnace; that the demand at this furnace must be limited; whereas, the demand elsewhere in the markets of the world might be practically unlimited. The circuit court, on the first branch of the controversy,-as to the right of the appellees to raise ore,-held that the reservation created an exclusive right to raise ore, and that the appellees were the exclusive owners of the iron ore on the lot No. 6 in fee-simple; dissolved the injunction, and dismissed the bill, without prejudice to the privilege of either party in interest to institute proper proceedings, either at law or in equity, for the purpose of ascerR. P. Bell, for appellants. James Bum-taining the rights of parties in connection gardner, Jr., and Geo. M. Cochran, Jr., for with the road between the mines and the appellees.

LEE et al. v. BUMGARDNER et al. (Supreme Court of Appeals of Virginia. Sept. 17, 1889.)

VENDOR ANd Vendee-RIGHTS-TRESPASS.

Where a conveyance of land reserves the right to raise ore thereon to the owners of a certain furnace, the exclusive right to such ore remains in the vendors, and a subsequent conveyance by them of such ore to the owners of such furnace constitutes a good defense to a bill to restrain the latter from digging the ore, though the conveyance is made after action brought.

Appeal from circuit court, Augusta county.

LACY, J. This is an appeal from a decree of the circuit court of Augusta county, rendered on the 11th day of December, 1888. The appellants filed their bill in the circuit court of Augusta county on the 12th day of August, 1887, praying an injunction to restrain the appellees from committing a trespass on their lands in the bill mentioned and described, which injunction had been granted on the 27th day of July, 1887, and indorsed on the bill before filing. The case is as follows: On the 24th day of August, 1855, Elisha Bryan conveyed his 10,000-acre tract of land, lying on the western slope of the Blue Ridge mountains and the flat country beyond, to trustees, for the benefit of creditors. Upon this land was a small, hot-blast, charcoal furnace, capable of turning out about 10 tons of good foundry iron

Cotopaxi furnace. From this decree the case was brought here by appeal.

The grant of the iron ore in the lands of the vendor is a grant of the substance, is a corporeal hereditament, and is exclusive; but the right to take ore from the lands of the vendor, being granted for a specific purpose, or in a limited quantity, is an incorporeal hereditament, and is not exclusive. So the conveyance of the right to take ore under grantor's tract of land is a conveyance of the entire ownership of the ore in place beneath the grantor's land; and the minerals beneath the surface of land may be conveyed by deed, distinct from the right to the surface, and is a corporeal hereditament that passes by deed. Effect should be given to the intention of the parties in the determination of a question of this kind, and when the intent is to give the usufruct, and power of disposal, obviously the title

At the time of the institution of the suit here the appellees were trespassers upon the rights of the appellants, not because the appellants were, in any sense, the owners of the ore bank but the appellees, not being the owners of the ore bank, had no right to dig the surface up which did belong to the appellants, and they, being mere strangers, could not justify their invasion of the soil of another by the outstanding rights of the original vendors. But the defendants, after suit brought, perfected their title, by obtaining from the person holding the title to the ore banks a conveyance thereof. And while this title was procured after suit was brought, it having been so procured without interference with the rights of plaintiffs, the appellants here, constitutes a valid defense to the complaint of the plaintiffs, so far as digging for ore is concerned.

must pass. Unopened mines may be con- | therewith, may pass as parcel, it may not veyed, and the grantee takes more than a as appurtenant. So in this case, the ownright issuing out of land or exercisable ership of the ore banks in question, remaintherein; he takes the mines themselves, ing in the vendors, could not pass as appurcarrying an unrestricted right to take and tenant to lot 11, and remained ungrantcarry away all the ore therein,-an exclusive ed until 1888, not having been granted in any corporeal right. And the same is true of a antecedent deed until after suit was reservation of such rights; and it was held brought, when the surviving trustee conat an early day in the mining state of Penn- veyed to the appellees the said ore bank. sylvania that in a deed conveying a tract of land, excepting, however, and forever reserving, the liberties and privileges of the grantor and others in like interest to dig, take, and carry away all the stove coal that might thereafter be found on the tract, that the deed conveyed no part of the stove coal to the grantees, and that it remained reserved or ungranted as a corporeal hereditament. Benson v. Bank, 20 Pa. St. 370. It cannot be questioned, I think, that the ownership of a bed, or seam, or bank of iron ore or other mineral is a corporeal interest in land. In this case the owner sold the surface of the land, retaining the minerals which lie below the surface; and, as was said by the court in Caldwell v. Fulton, 31 Pa. St. 475,"as his whole interest was corporeal before the sale, and as by his deed only the surface passed, that which remains ungranted must be corporeal;" the learned As far as the right of way is concerned, justice saying in that case: "Coal and min- the contention of the appellants that the erals in place are land. It is no longer to defendants cannot extend their rights therebe doubted that they are subject to convey- to beyond their grant, so as to burden the ance as such. Nothing is more common in servient tenant more than by their grant Pennsylvania than that the surface right they are authorized to do, still, as the failshould be in one man, and the mineral right ure of the extended right of way cannot afin another. It is not denied, in such a case, fect the ownership of the ore banks, and as that both are land-owners, both holders of the circuit court has not decided, but a corporeal hereditament. Our English an- waived, this question, and has rendered a cestors, indeed, found difficulty in conceiv-decree without prejudice to the assertion of ing of a corporeal interest in an unopened the rights of either party, either in equity mine, separate from the ownership of the oratlaw, the appellants have not been prejsurface, because livery of seisin was, in their udiced on this subject by the decree comminds, inseparable from a conveyance of plained of; and, taken as a whole, there apland, and livery could not be made of an pearing no error therein to the prejudice of unopened mine. The consequence was that the appellants' rights, the same must be they were disposed to regard such rights affirmed. as incorporeal, though they are not rights The case of Gloninger v. Coal Co., 93 Amer. issuing out of land, but the substance itself. Dec. 720, relied on by the appellants, is to In this state, however, livery of seisin is be distinguished from the case of Caldwell supplied by the deed and its registration, v. Fullon, and from a case like this. That and there is nothing incongruous in consid- was a grant, for $6.50, of the free right to ering a grant of the substratum a grant of dig coal at the foot of the mountain on the land as much as is a conveyance of the sur-grantor's land, and carry it to the granface itself. It is often, by far, the most val- tee's blacksmith shop, doing as little damuable, and sometimes embraces all for which age as possible in the acts aforesaid, and the land is worth owning." These princi- was not the grant either of the subject or ples are well settled in other states, and are of the exclusive right to dig coal. The dissound in principle. Iron Co. v. Iron Co., 32 tinction is drawn in that case very clearly Pa. St. 246, and cases cited; Knight v. Iron by the judge who delivered the opinion of Co., 47 Ind. 110; Marble Co. v. Ripley, 10 the court, and in his notes to that case Mr. Wall. 363; French v. Brewer, 3 Wall. Jr. Freeman has cited the cases which most 355. The appellants, not having purchased clearly define the distinction between the the iron ore beneath the surface, acquired grant of a corporeal interest in minerals and no right thereto by the deed granting the the right to the use,-the right to take mintract but reserving the iron ore in the man-erals to a special extent, not the exclusive ner stated, and this remained the property right to the subject itself. There is no erof the vendors, and could by them be grant-|ror in the decree appealed from, and the ed by deed only. They could not pass as same must be affirmed. appurtenant to the tract of land granted to the appellees for the reason that land can never be appurtenant to other land, nor pass with it as belonging to it. Leonard v. White, 7 Mass. 6; Harris v. Elliott, 10 Pet. 25; Co. Litt. 121-126; Jackson v. Hathaway, 15 Johns. 447; Washb. Easem. 341. While land adjoining that granted, and used for the "recovery

SMITH V. CLARK, Judge.

(Supreme Court of Appeals of Virginia. Sept. 17, 1889.)

TAXATION-COLLECTION-JURISDICTION.

Act Va. 1887, Extra Sess., p. 257, providing of taxes, * due

*

*

Petition for writ of prohibition.
W. L. Royall, for petitioner.

The argument in support of the application for the writ is that the action in question was brought under the aforementioned act of May 12, 1887, and that that act provides for suits in the circuit courts only; that, independently of that act, the attorney for the commonwealth has no authority to bring an action for the commonwealth like the one in question, and, therefore, that the said corporation court has no jurisdiction to entertain the action, and the proceeding is coram non judice. We are of opinion that this position is well taken, and consequently that the writ must be awarded as prayed for in the petition, and it is so ordered.

the commonwealth, for the payment of which | cuted by the attorney for the commonpapers purporting to be genuine coupons of the wealth of the county or corporation in commonwealth have been tendered," declares (sec which the proceeding is; or, if it be instition 1) that they "may be recovered in the circuit tuted by direction of the auditor of public court having jurisdiction over the county or corporation in which said taxes shall have been as- accounts, in the circuit court of the city of sessed." Held, that the corporation court of Win- Richmond." The act then goes on to prochester has no jurisdiction over an action to re- vide for the rendition of judgment, and the cover such taxes. issuance of execution, and by the ninth section enacts as follows: "Should coupons be tendered the officer in satisfaction of said execution, he shall note the fact of such LEWIS, P. This is a petition for a writ tender upon the execution, and return it to of prohibition to prohibit and restrain the the clerk's office, and thereupon the auHonorable W. L. Clark, judge of the corpo- ditor of public accounts may direct an acration court for the city of Winchester, tion to be brought upon the judgment. from proceeding further in a certain action This action shall be instituted and prosepending in the said court, wherein the com-cuted in the mode herein before prescribed monwealth, sueing by W. R. Alexander, at- for actions to recover judgments for taxes; torney for the commonwealth for the said and similar actions may be instituted city, is plaintiff, and the petitioner, Ger- whenever coupons are tendered in satisfacman Smith, is the defendant. The grounds tion of any judgment obtained by the comof the application for the writ are that the monwealth under the provisions of this petitioner tendered to the state, through act." her proper collecting officer, certain overdue tax-receivable coupons of the state in payment of his taxes for the year 1886, assessed in the said city, which tender was refused; that afterwards suit was commenced against him for the recovery of the said taxes in the said corporation court, under the supposed authority of the act of assembly approved May 12, 1887, entitled “An act to provide for the recovery, by motion, of taxes and certain debts due the commonwealth, for the payment of which papers purporting to be genuine coupons of the commonwealth have been tendered;" (Acts 1887, Extra Sess., p. 257;) that petitioner appeared in the cause, and objected to the jurisdiction of the court, but the objection was overruled, and judgment entered against him for the amount of the tax, with interest, penalty, and costs; that an execution issued upon this judgment, in payment of which petitioner tendered coupons, whereupon another suit in the same court was instituted against him upon the said judgment, and another judgment rendered against him; that, execution having issued upon said last-mentioned judgment, petitioner again tendered coupons, whereupon another suit in the same court was commenced against him upon the said lastmentioned judgment, which is now pending, and which is the proceeding the prosecution of which is sought to be prohibited. The first section of the act above mentioned enacts as follows: "That all taxes, including taxes on licenses, now due, or which may hereafter become due, to the commonwealth, in payment of which any paper or instrument purporting to be a coupon detached from a bond of this state shall have been, or may hereafter be, tendered, and not accepted, as payment, and not otherwise paid, may be recovered in the circuit court having jurisdiction over the county or corporation in which said taxes shall have been assessed; or if the tender was made to the auditor of public accounts, in payment of taxes which he is authorized by law to receive, the said taxes may be recovered in the circuit court of the city of Richmond." The third section enacts that "the proceeding shall be by motion in the name of the commonwealth, on ten days' notice, and shall be instituted and prose

CITY OF STAUNTON V. STOUT'S EX'RS. (Supreme Court of Appeals of Virginia. Sept. 17, 1889.)

COURTS JURISDICTION-TAXATION-SITUS. 1. Under Const. Va. art. 6, § 2, providing that the supreme court of appeals shall not have jurisdiction in civil cases where the amount in controversy is less than $500, except (inter alia) in controversies concerning the right of a corporation or county to levy a tax, a question involving the right of a city to tax certain bonds is within the jurisdiction of the court, without regard to the amount of such tax.

2. Bonds belonging to the estate of a decedent are taxable at his last domicile, without regard to the residence of his executors.

Error to corporation court of Staunton. Const. Va. art. 6, § 2, provides that the supreme court of appeals shall not have jurisdiction of civil cases where the amount in controversy is less than $500, except, inter alia, in controversies involving the right of a county or corporation to levy a tax.

A. C. Braxton, for plaintiff in error. M. Quarles, for defendants in error.

J.

LEWIS. P. The principal question in this case is whether certain bonds belonging to the estate of James M. Stout, deceased, are taxable by the city of Staunton. The residence or domicile of the decedent, at the time of his death, was in Middle River district, in the county of Augusta, outside of the city of Staunton. The bonds in question, valued at $7,360, were assessed with city taxes for the year 1888, amounting to $92, of which assessment the executors