WHITTLE, J. In an action of assumpsit by the defendant in error, Mattie S. Hite, against the plaintiff in error, the J. R. Wheler Company, to recover damages for timber alleged to have been unlawfully cut and removed from plaintiff's premises, the jury awarded $634.50 damages to the plaintiff. To a judgment on that verdict this writ of error was granted. The timber was sold at a judicial sale on November 23, 1903, the decree of sale providing that the purchaser should have "ten years in which to cut and remove the said timber from the day of sale." The commissioner reported the sale of the timber on December 3, 1903, the sale was confirmed December 8, 1903, and on December 17th following, the commissioner conveyed the timber to the purchaser, and, without authority, stipulated in the deed that he should have ten years from the date thereof within which to cut and remove the same. A small quantity of the timber was cut within ten years after the sale, but none was removed within that time, and the greater part of it was cut PARRISH et al. v. CITY OF RICHMOND. 1. MUNICIPAL CORPORATIONS 703(1)-OR- 2. MUNICIPAL CORPORATIONS 111(3)-OR- DINANCES-REASONABLENESS An ordinance, to be valid, must be reason able. Appeal from Hustings Court of Richmond. Suit by Parrish and others against the City of Richmond. From a decree for defendant, complainants appeal. Reversed and rendered. O'Flaherty, Fulton & Byrd, of Richmond, for appellants. H. R. Pollard, of Richmond, for appellee. KEITH, P. The bill in this case was filed by a number of men who were operating for hire along and over the streets of the city known as "jitneys," for which a compensation of Richmond certain automobiles commonly of five cents for each passenger was charged. The city of Richmond passed an ordinance to afterwards. The case was correctly tried upon the the-regulate the use of its streets by the autoory that the limitation prescribed by the de-mobiles or jitneys, which the plaintiffs concree of sale, and not the time limit specified in the commissioner's deed, was controlling ; and the court instructed the jury accordingly. sidered as unduly harsh and oppressive. They thereupon filed their bill for an injunction, which was granted, and was subsequently dissolved; whereupon an appeal was taken by the plaintiffs to this court. After the appeal was allowed the city repealed the ordinance. The plaintiff's right to recover damages for timber cut and removed by the defendant after the expiration of the time fixed by the decree is settled by the recent cases of [1] Among other provisions of the ordiSmith v. Ramsey, 116 Va. 530, 82 S. E. 189, nance is one which requires the operator of and Blackstone Mfg. Co. v. Allen, 117 Va. the jitney to obtain a license from the city 452, 85 S. E. 568. The principle that the of Richmond, and that in the application for terms of the decree of sale govern the rights license "it shall be stated that the applicant of the purchaser rather than unauthorized is the owner of the vehicle or vehicles proprovisions in the commissioner's deed is man- residence is in the city of Richmond, or that posed to be operated, and that his place of ifest. He has no interest in the property he has a place of business or principal office conveyed, and merely acts as an instrumen- therein. So much of this requiretality of the court, possessing no independent ment as demands that the applicant shall authority, and, exercising the naked power be the owner of the vehicle he proposes to conferred upon him by the decree in transfer-operate is, we think, unreasonable; that it ring the title, cannot vary its terms. Tay- does not tend to promote the safety or conlor v. Cooper, 10 Leigh (37 Va.) 317, 34 Am. venience of the public, and is therefore not Dec. 737; Walton v. Hale, 9 Grat. (50 Va.) a proper exercise of the police power. 194, 198; Robertson v. Smith, 94 Va. 250, 252, 26 S. E. 579, 64 Am. St. Rep. 723. * [2] It is well settled that an ordinance, to be valid, must be reasonable, and that an unreasonable by-law is void. See Kirkham (three years or at the end of five years from v. Russell, 76 Va. 956. the time the cause of action arose. As the ordinance has been repealed, we Under section 6 of the act to regulate do not deem it necessary to examine its oth-commerce, as amended by Congress and aper features, and with respect to them we ex- proved June 29, 1906, there can be no quespress no opinion. tion of the right and the duty of the carrier to collect of the shipper, and the duty of the shipper to pay the rate fixed by the published tariff. "Whatever may be the rate agreed upon, the carrier's lien upon the goods is, by force of the act of Congress, for the amount fixed by the published schedule of rates and charges, and this lien can be For the reasons given, we are of opinion that the decree complained of should be reversed, the injunction perpetuated, and that the appellants should recover their costs. Reversed. (119 Va. 5) ATLANTIC COAST LINE R. CO. v. VIR- discharged and the consignee can become en GINIA MFG. CO. titled to the goods only by the payment, or (Supreme Court of Appeals of Virginia. June tender of payment, of such amount. 8, 1916.) LIMITATION OF ACTIONS 28(1)-WHAT LAW [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 142; Dec. Dig. 28(1).] Such is now the supreme law, and by it this and the courts of all other states are bound." Any special agreement for a less rate than that established by law is void. Texas P. Ry. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628, 50 L. Ed. 1011. No limitation is prescribed by the act of Congress, but, where that is the case, the statute of limitations of the state may be invoked as a bar to the claim sought to be recovered. In Hughes on Federal Procedure, p. 9, it is said: Error to Circuit Court of City of Suffolk. "The statutes of a state, in so far as they regAction by the Atlantic Coast Line Rail-ulate substantive rights, and also in so far as road Company against the Virginia Manufacturing Company. Judgment for defendant, and plaintiff brings error. Affirmed. Wm. B. McIlwaine, of Petersburg, for plaintiff in error. V. H. Kellam, of Norfolk, for defendant in error. HARRISON, J. This action of assumpsit was brought by the plaintiff in error to recover of the defendant in error $548.81, freight charges claimed to be due for several interstate shipments of goods made at the instance and request of the defendant in error. they regulate remedies on the common-law side of the court, are adopted and enforced by the federal courts where they do not conflict with the federal Constitution and statutes." This text is well sustained by the authorities cited in its support. In Ratican v. Terminal R. Association (C. C.) 114 Fed. 666, it is said, citing a number of authorities in support of the statement, that: "The interstate commerce act prescribes no limitation of time within which actions based thereon shall be instituted, and therefore such the statutes of the state wherein they are actions must be governed, as to limitation, by brought." There being no question of the right of recovery, or that the state statute of limitations may be pleaded in bar of such recovery, it only remains to determine whether the three-year statute of limitation, relied on by the defendant, is applicable in the present case. The statute (Code, § 2920) provides as follows: The amount sued for was alleged to be the difference between the rate of 21 cents per 100 pounds, charged by the local agent, which was paid by the shipper, and 44 cents per 100 pounds, the rate fixed by the plaintiff company, on file with the Interstate Commerce Commission at the time the shipments were made, and posted according to law. These shipments were all made in January, 1910, more than three years before this suit "Every action to recover money, if was brought. There is no dispute as to the it be upon an award, or be upon a contract by evidence. The only question at issue is that writing, signed by the party to be charged thereraised by the plea of the statute of limita- by, or by his agent, but not under seal, within * * and if it be upon any othtions interposed by the defendant company. er contract, within three years, unless," etc. An undercharge for the interstate shipment The contract in this case to carry the of freight being prohibited by the federal goods at the rate of 21 cents per 100 pounds law, the question is whether the right to re- was, as we have already seen, void. cover the difference between such under-soon, however, as the goods were left with charge and the lawful rate may be barred by the carrier, an implied contract arose on its the Virginia statute of limitations, and, if part to transport them to their destination, so, whether the bar applies at the end of and on the part of the shipper to pay for five years; As MENT. eting a judgment in the county where land is Necessity, under Code 1904, § 3570, of docksituated that it may be a lien as against one taking a deed of trust thereon without notice, is in another county for partition of that and oth not obviated by proving the judgment in a suit er land. such transportation 44 cents per 100 pounds, | 4. MORTGAGES 154(2)-DEED OF TRUSTthe published rate for such service. It is JUDGMENT-PRIORITIES-DOCKETING JUDGclear that this is an action ex contractu to recover the balance alleged to be due from the defendant under its implied contract to pay the plaintiff 44 cents per 100 pounds, the published rate for the transportation of the goods. This being so, the lower court properly held that the three-year statute, which provides the limitation to actions arising out of contracts, was applicable in the present case, and that when applied the claim asserted was barred. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 347-349; Dec. Dig. 154(2).] Appeal from Chancery Court of Richmond. Suit between Murphy's Hotel Company, Incorporated, and Mary Lee Benet and others. There is no error in the judgment com- From a decree holding said Benet's deed of plained of, and it must be affirmed. Affirmed. CARDWELL, J., absent. (119 Va. 157) MURPHY'S HOTEL CO., Inc., v. BENET et al. (Supreme Court of Appeals of Virginia. June 8, 1916.) 156-SECOND 1. MORTGAGES Subject to the first deed of trust, the trustee under a second deed of trust of land to secure a debt is a purchaser of real estate within Code 1904, § 3570, providing that a judgment not docketed in the county shall not be a lien on real estate as against a purchaser thereof for value without notice. [Ed. Note.-For other cases, see Mortgages, 2. MORTGAGES 151(5)-DEED OF TRUST Relative to its being protected against an undocketed judgment, a second deed of trust, in the usual form of a trust deed, conveying all the grantor's right, title, and interest in the lands, with covenant of general warranty, and stating that it is to secure payment of a $10,000 note, is not a quitclaim; a warranty being a distinguishing characteristic, and it appearing from the deed's terms that the consideration was adequate, and that the grantor intended to convey, and the grantee expected to be invested with, right and title to the property, so far as necessary to satisfy the debt secured. trust to Thomas Toby had priority over certain judgments, the judgment creditors appeal. Affirmed. A. B. Dickinson and R. H. Talley, both of Richmond, for appellants. W. P. De Saussure, of Richmond, and J. Winston Read, of Newport News, for appellee. HARRISON, J. This controversy involves the right of priority between certain judgment creditors and a deed of trust creditor of Mary Lee Benet, in the distribution of the proceeds of certain real estate in which their debtor had an interest. It appears from the record that Mary Lee Benet became, in 1908, when her mother died, the owner of an undivided one-fourth interest in a large estate known as the "A. J. Ford trust estate." This estate was being administered at the time under the orders and decrees of the chancery court for the city of Richmond. In 1910, Mary Lee Benet filed her bill in the chancery court for the city of Richmond, where most of the property was situated, asking for a partition of this trust estate among the parties entitled thereto, which was heard with the suit then pending for the general administration of the trust estate, and in April, 1910, a decree was entered directing a sale of all of the Ford trust property. Among other properties belonging to this estate were certain lands lying in the county of Gloucester. By deed duly recorded in Gloucester county November 21, 1910, Mary Lee Benet conveyed with general warranty to a trustee all of her right, title, and interest in these Gloucester lands to secure to Thomas Toby a note for $10,000. At the time this lien in favor of Toby was recorded there was another and prior deed of trust upon the same property securing the sum of $3,000. The judgments in question were obtained against Mary Lee Benet by the several appellants in sundry courts of the city of Richmond in the year 1909, but were never docketed in the county of Gloucester. The prior deed of trust mentioned securing $3,000 was paid off in 1914, and is therefore not involved in this controversy. tion is between Thomas Toby, the beneficiary The present litiga[Ed. Note. For other cases, see Mortgages, under the second deed of trust securing Cent. Dig. §§ 347-349; Dec. Dig. 154(2).} $10,000, which was recorded in Gloucester [Ed. Note. For other cases, see Mortgages, For other definitions, see Words and Phrases, TICE. 154(2)-DEED OF TRUST JUDGMENT-PRIORITIES-NO Relative to priority of a deed of trust by B., of land in G. county, to secure T., and a previous judgment against B., undocketed in G. county, reference in the deed of trust to a prior deed in the chain of title, which referred to suits in another county, did not require T. to investigate those suits and thus charge him with notice of the judgment which such investigation would have disclosed, those suits constituting no part of his chain of title. county in November, 1910, and the appellants, of purchaser for value without notice, the whose judgments were obtained and docketed concession would not avail the appellants in 1909, in the city of Richmond. The low-for the reason that the deed on its face wholer court held that the deed of trust in fa-ly fails to justify the contention that it is a vor of the appellee, Thomas Toby, had priority over the judgments asserted by the appellants, and decreed accordingly. [1] The appellants contend that when Mary Lee Benet gave the first deed of trust for $3,000 on her one-fourth interest in the Gloucester county lands, she had left only an equity of redemption, and that the trustee in the second deed of trust securing Toby $10,000 did not acquire the legal title but a mere equity, and is not therefore a purchaser for value without notice. In other words, the contention is that a second deed of trust takes subject to any judgments obtained against the grantor, whether docketed in the county or corporation wherein the real estate is located or not. This proposition is without merit. It is a common occurrence for loans to be secured by a second deed of trust, and when such loans are made the trustee therein can be as truly a purchaser for value and without notice as the trustee in the first deed can be. If he is a purchaser for value without notice, the beneficiary takes subject only to the rights secured by the first mortgage and is not affected by the liens of judgments not ⚫ docketed before his deed of trust was duly recorded. Shurtz v. Johnson, 28 Grat. (69 Va.) 657. In that case the facts, briefly stated, were as follows: In 1859 White conveyed certain real estate in York county, Va., to Peachy, trustee, to secure a certain debt. In 1866 he conveyed the equity of redemption in the same property by a second deed of trust to Williams, trustee. Certain creditors recovered judgments against White, which were not docketed in the county of York until 1867. Judge Burks, in delivering the opinion of the court, said in part: quitclaim deed. The instrument is in the usual form of a trust deed. It conveys all of the right, title, and interest of the grantor in the lands described, with covenants of general warranty, and clearly states that it is to secure the payment of a $10,000 note to the holder thereof. The presence of a warranty in a deed is one of the distinguishing characteristics between a quitclaim deed and a warranty deed. "The doctrine that one who claims under a quitclaim deed will not be protected against a strict sense of that technical species of conveyprior unrecorded deed must be limited to the ance. If, from the terms of the deed, the adequacy of the price paid, or other circumstances, and the grantee expected to be invested with, a it appears that the grantor intended to convey, fee-simple title or other particular estate, the purchaser will be entitled to protection." 24 Am. & Eng. Enc. of Law, p. 122, and note 2. In the case before us, it appears from the terms of the deed that the consideration was adequate, that the grantor intended to convey, and the grantee expected to be invested with right and title to the property conveyed so far as it was necessary to satisfy the debt thereby secured. The record does not furnish a fact or circumstance to sustain the contention that the deed in question was intended to be or was in fact a quitclaim deed. [3] It is further contended by the appellants that the recitals in the deed of trust taken by the appellee, Toby, gave him constructive notice of their judgments. It is one of the agreed facts in this case that neither Toby, his trustee, nor his attorney had any notice of the judgments asserted by the appellants, save only such notice as the law would impute to them from the deeds recorded in Gloucester constituting links in the chain of title. The claim of the appellants is that the deed of trust, by which the debt due appellee was secured, referred to a prior deed, in the chain of title, which made reference to the several suits, heard together in the city of Richmond, involving the administration and settlement of the A. J. Ford trust estate, and that if the appellee had investigated those suits he would have discovered the existence of the judgments which were then unknown to appellee. If it were true that this voyage of discovery would have disclosed appellants' judgments, we are unable to perceive wherein any obligation rested upon the appellee to investigate the suits pending in Richmond. Those suits constituted no part of his chain of title which was wholly in the [2] It is further contended by the appel- county of Gloucester. The deeds there of reclants that the second deed of trust under ord gave appellee a sufficient description of which the appellee, Toby, claims is only a the property he was securing his debt upon, quitclaim deed, and that he is therefore not and all the information that was needful to protected as a bona fide purchaser. If it accomplish his purpose. An examination of were conceded that one who takes under a the records in Gloucester county showed that "At the time the deed was made to Williams (trustee), 31st May, 1866, neither the trustee nor the creditors secured by the deed had any notice of them. If they had been docketed in said county within twelve months from the date of their recovery, they would have constituted liens on White's equity of redemption of the deed to Peachy (trustee), as of the date of their recovery (Code 1860, c. 186, §§ 6, 8), which, being prior, would have been superior to the lien created by the deed to Williams (trustee). The trustee in the last-named deed and the creditors secured therein are 'purchasers for valuable consideration' within the meaning of section 8, c. 186, Code of 1860, and, having had no notice of the judgment at the time the deed was executed and recorded, the lien created by the deed takes precedence of the lien of the judgments." wise, binding the property, except the first | registry laws. If a judgment lien creditor, deed of trust mentioned for $3,000; and ap- by filing his petition or proving his judgment pellee was put upon no such notice, by those in a partition suit pending in the city of deeds, as required him to inquire further Richmond, can obviate the necessity of dockthan the records of Gloucester county where eting his judgment in every county or corthe lands, in question, were situated. poration where his debtor has real estate, then section 3570 of the Code would afford no protection to a purchaser. That section tells a prospective purchaser that judgments not docketed in the county or corporation wherein the real estate is situated shall not affect his rights. The record furnishes no evidence of any act of omission or commission done by the appellee that impairs his rights as a bona fide purchaser for value without notice, under his deed of trust of It is true that in a judicial sale the papers in the cause furnish reliable information as to the property to be sold, the title, boundaries, etc., and to these the purchaser should look. But Mrs. Benet, the grantor of appellee, did not hold title under a judicial sale. The deed by which she acquired title was the deed from A. J. Ford in his own right and as trustee to Munford, etc., trustees, dated June 10, 1898, eleven years before the judgments now sought to be enforced were obtained. November, 1910. The registry laws afford ample protection to purchasers as well as creditors, and if either fail to avail of the law made for their protection, they must suffer the consequences. There is no error in the decree complained of, and it is affirmed. Affirmed. [4] It is further insisted by appellants that the appellee and the trustee in the deed securing his debt were pendente lite incumbrancers, who stood in the shoes of their grantor, and therefore could not occupy the position of purchasers for value without notice. The ground upon which this contention rests is not clear. It is claimed that this was the effect of an opinion rendered in the causes pending in the chancery court of the city of Richmond in July, 1912. This opinion does not in our judgment warrant the interpretation sought to be put upon it. By petition BOYCE v. WESTERN UNION TELEGRAPH filed in the causes pending in Richmond, the appellee sought to have a resale of certain CARDWELL, J., absent. CO. (119 Va. 14) property located in York county and the city (Supreme Court of Appeals of Virginia. June of Richmond, upon which his trust deed rested, on the ground that he was not a party to the suit and had no notice thereof. The court declined to order such resale, holding that an incumbrancer of a cotenant was not a necessary party to a partition suit, and that his lien would attach either to the moiety of land allotted his grantor, or to her interest in the proceeds of sale. The opinion relied on nowhere intimates that the appellee had lost his lien. It says, in part: "If the land is divided in kind amongst the cotenants, the liens upon the undivided share of each of them will thereupon attach to the divided share; and, in case of a sale, the liens will attach to the proceeds belonging to the cotenants whose undivided share was incumbered. In effecting a partition it is not the business of the court to draw into discussion the various rights and conflicting equities of persons holding incumbrances upon the share of one of the cotenants. The property is divided cum onere. Freeman on Cotenancy, §§ 478, 479. "The right of partition would be seriously impaired if, after a decree of sale and confirmation to a purchaser, an incumbrancer of one cotenant, and one who is not even a necessary party to the cause, could intervene in the suit and demand that the sale be set aside because inadequate. The incumbrancer took his lien subject to the hazard of a partition suit to which he would not be made a party." Wright v. Strother, 76 Va. 857; 21 Am. & Eng. Enc. of Law, 1188, 1189; Bennet on Lis Pendens, §§ 155, 288. If the contention of appellant were sound, It would destroy the force and effect of the 8, 1916.) 1. TELEGRAPHS AND TELEPHONES ~54(5) Act Cong. June 18, 1910, c. 309, 36 Stat. 544 (U. S. Comp. St. 1913, § 8563), makes teleprovisions of the Interstate Commerce Act, and graph companies common carriers subject to the provides that messages may be classified into repeated and unrepeated messages, etc., and that different rates may be charged for the different classes of messages. Plaintiff sent an unrepeated night letter written upon a blank, stipulating that, unless the message was repeated at a charge in addition of one-half the unrepeated message rate, the company would not be liable for mistakes in transmission beyond the amount received for sending the message, and the message "ship me fifteen mules all mares and extra good," as delivered, read "ship me fifteen mules all mares no extra good." Held, that the stipulation was reasonable and enforceable, that such classification and charge was authorized by the act, and that the sender could recover only the amount paid the company. and Telephones, Cent. Dig. §§ 43, 46; Dec. Dig. [Ed. Note.-For other cases, see Telegraphs 54(5).] |