Wartenby v. Moran

3 Va. 424

• Court: Court of Appeals of Virginia
• Decided: November 4, 1803
• Status: Published

Opinion

FLEMING, 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 hsec 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 aright to re-enter.

There is.no ground for the objection, that notice ought to have been given that a re-entry 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 distrainj the right of re-entry attached. 6 Bac. Abr. 29, [Gwil. ed.;] 2 Roll. Abr. 427; 7 Co. 29; Litt. § 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, whereot itistress could he made: Of course, by the express terms of the condition, the bargainor had a right to re-enter. There is nothing iu 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. 1 am, therefore, of opinion, that the judgment of the District Court ought to be reversed.

EYONS, 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 (he District Court ought to be reversed.