Gay v. Hancock

Where land is sold with general warranty, and a deed of trust given on the land itself, to secure the payment of the purchase money, if an adverse claim to the land is afterwards discovered, a court of equity will injoin the . sale, under the trust deed, until such adverse claim is regularly decided.

This was an appeal from an order of the chancellor, of the Richmond district, dissolving an injunction obtained by the appellant against the appellees, to stop them from proceeding under a deed of trust. The case was this : Gay purchased of Hancock, a tract of land called Chester Hill, the purchase money to be paid by instalments. He took a deed with general warranty from Hancock, and gave a deed of trust on the land itself to secure the purchase money. After several instalments had been paid by the appellant Gay, he discovered that there was a claim to the land by the representatives of David Ross, and a suit then actually pending for the same.' Gay avers in his bill, that he had no knowledge of the existence of such a suit, at the time of the purchase aforesaid. Hancock, on the contrary, asserts in his answer, that he gave Gay full information of the claim of Ross, and cautioned him not to proceed with the purchase, until he had satisfied himself respecting the validity of the said claim. This assertion is not supported by any other evidence. The notes, given for the remaining instalments, were assigned to Judith Nicholson, and protested for nonpayment when they became due. Whereupon, the trustees advertised the Chester Hill tract for sale. Gay applied for an injunction ; which was refused by the chancellor, but granted by the judges of the court of appeals. Upon the coming in of the answers, the chancellor dissolved the injunction, and an appeal was taken to this court. The case was argued by O’Reilly, for the appellant, and Copland, for the appellees.