Ott's v. King , 8 Va. 224 ( 1851 )

Moncure, J.

delivered the opinion of the Court.

The Court is of opinion that the appellee Miles King, having agreed by contract in writing signed by him, to give a deed of trust on the lot of land and buildings in the bill mentioned, to secure the payment of his two bonds to George Ott, the testator of the appellant, for two thousand five hundred dollars each, dated the first day of April 1823, payable four and five years after date, with interest from the date; and the said George Ott in his lifetime, and the appellant as his sole devisee, legatee and executrix, since his death, having retained possession of a part of the said property, to wit, the western tenement, since the said contract was entered into, under an agreement with the said Miles King that an annual rent of three hundred dollars should be allowed therefor and set off against the annual interest on the said two bonds; the said contract constituted an equitable lien on the said property for the amount of the said two bonds, which lien a Court of equity ought to enforce not only against Miles King and his heirs, but against Newton C. King and the creditors, if any, claiming under the general assignment exhibited with the bill; whether the said assignment be invalid or not, a question which the Court deems it unnecessary, in this case, to decide. And the Court is further of opinion, that the Circuit court, instead of dismissing the plaintiff’s bill, should have proceeded to ascertain the balance due upon the said bonds, and then have decreed that unless the said balance so ascertained with interest and costs of suit should be paid by the defendants or some of them within a reasonable time thereafter, the said property or so much as might be necessary, commencing with the western tenement aforesaid, should be sold for the purpose of paying the same. Therefore it is considered that the said decree of the Circuit court be reversed and annulled, and that the appellant recover against the appellee Miles King her costs by her expended in the prosecution of her appeal aforesaid here. And the cause is remanded to the said Circuit court to be proceeded in according to the foregoing opinion.

Decree reversed.