Wartenby v. Moran , 3 Va. 491 ( 1803 )

RLEMING, Judge.

There is certainly nothing in the argument of the appellee’s counsel, that the jury have found that the conveyance, from Prather to Moran, was without any condition ; because the deed is found in hasc verba, and contains the condition.

The question then is, whether the re-entry was lawful? The verdict expressly finds, that no rent had ever been paid; that Prather made a demand; and that, there being no property on the land whereof distress could be made, he entered for the non-payment; which brings it exactly-within the *terms of the condition; and, therefore, the grantor had clearly a right to re-enter.

There is no ground for the objection, that notice ought to have been given that a reentry would be made; because, the law requires no such notice to be given ; for, upon the demand of the rent, and no property found to distrain, the right of re-entry attached. 6 Bac. Abr. 29, [Gwil. ed.;] 2 Roll. Abr. 427 ; 7 Co. 29; Ifitt. I 233.

As both parties claim under the same title, unless the plaintiff shews a better right, there is no ground to impeach the possession of the defendant.

And, upon the whole, I am of opinion that Prather had a right to re-enter and possess himself of his former estate, and that his deed to Robins was valid: of course, Wartenby, who claims under him, and is now in possession, has the better title; and, therefore, the judgment of the District Court ought to be reversed.

CARRINGTON, Judge.

The verdict finds that the rent was not paid; that it was demanded, and that there was no goods upon the premises, whereof distress could be made: Of course, by the express terms of the condition, the bargainor had a right to re-enter. There is nothing in the objection that no title in Prather is found; for, as both parties claim under him, the one in possession ought not to be disturbed, unless the other can shew a better right. I am, therefore, of opinion, that the judgment of the District Court ought to be reversed.

LYONS, Judge.

The demand of the rent, with the non-payment, and want of property on the premises, whereof distress could be made, are expressly found by the jury: Of course, the right of entry accrued by the express terms of the deed; and, therefore, the judgment of the District Court ought to be reversed.'