1883-4, p. 210, c. 161. 1865-6, p. 198, c. 87, 22. Id., §3. tion in the newspapers or otherwise, at least three weeks before the same is performed, notice of the time appointed by them for processioning in each precinct; and shall also cause to be served, in the manner prescribed by law, a like notice upon any person whose lands may be affected by such processioning. Each processioner shall be allowed by the court of his county one dollar and fifty cents for every day he shall be employed; and in the case of the death, resignation, or removal from office, or failure to act, of any such processioners, the court of the county where such vacancy shall happen shall appoint a successor; and every county court shall make a reasonable allowance to its clerk for the services to be performed by him by virtue of this chapter, which allowance, together with other necessary expenses incurred in the execution of this chapter, not otherwise provided for, shall be levied in the next county levy. Sec. 2406. Processioning lands in certain counties.-So much of the preceding section as empowers the several county courts to divide their counties into precincts shall not apply to the counties of Accomac, Northampton, Hanover, Caroline, Prince Edward, and Nansemond; but the respective boards of supervisors of said counties shall divide their counties into so many precincts as to them may seem proper for processioning the lands of all persons in said counties, or in such portions thereof as to such boards may seem proper; and such boards shall every fifth year from and after the twenty-fifth day of February, eighteen hundred and eighty-nine, appoint three intelligent and discreet freeholders, whose duties shall be as described in the preceding section; and all the provisions of that section shall apply to said counties, except so far as is otherwise herein enacted. Sec. 2407. Processioners may employ surveyor to mark boundaries; appeal from their decision; payment of costs.-The said processioners, whenever they deem it necessary, or when any party in interest may require it, may employ the county surveyor, or any other surveyor designated by the court, to run such lines, and make such plats, reports, and surveys as they may deem necessary; and whenever any party in interest requires it, the said processioners shall return to said court a plat and survey of any land processioned as aforesaid; and any party interested may contest the correctness of the processioning, and have the same tried by a jury, in the same manner and with the same right to a writ of error or superseadeas as if it was an action of ejectment; and the issue to be made up and tried shall be, "Whether the processioning of the land in controversy is in accordance with the true boundaries of said land, and if not, what are the true boundaries," and upon the trial of such issue, all the evidence shall be admitted which would be admissible if it were an action of ejectment. The party contesting such processioning shall give legal notice to any adverse party in interest, of his purpose so to do, and the cost of all surveys, plats, and trials shall be, paid by the parties, or such of them, and in such proportions as the court may direct. Sec. 2408. Reports of processioners, and plats, &c., to be recorded; effect thereof as evidence; what to be perjury.-The reports of said processioners, and the plats and surveys, as established upon the trial of any controversy arising thereon, shall be recorded in a book to be kept for that purpose by the clerk; and the same shall be evidence of the boundaries of any such lands in any future controversy in regard to them, and shall have the same effect in law as if they were deeds duly recorded according to the registry acts of the state; the costs of such recordation to be paid by the parties interested therein; and said processioners shall have the power to summon and swear witnesses, and false swearing before them, or either of them, shall be perjury. Sec. 2409. Where lands lie in several counties, how processioned. If Id., § 4. any such lands lie in two or more counties, the processioning shall be done by the processioners of that county in which the greater part of said land lies; and the report, plat, and survey of the whole tract shall be returned to and recorded in each county in which any portion of such land lies. Sec. 2410. Assignment of precincts to processioners; sheriff, when Id., § 5. requested, to attend and remove force.-The court of each county shall direct in its order what precinct or precincts each processioner shall attend and perform the processioning therein as aforesaid; and the sheriff is required, when requested by said processioners, to attend them and remove force, if any should be offered; and, for this purpose, the sheriff is authorized to summon the posse comitatus of his county. Sec. 2411. How processioning controverted by reversioner, remainder- Id., § 6. man, or person under disability.-Provided that the processioning and settlement of the bounds of land held by any tenant for life only, shall not bar or conclude the reversioner or remainderman; but such reversioner or remainderman may, at any time within five years after the termination of such life estate, controvert the bounds, as if no processioning had been made. Provided further, that the processioning and settlement of the bounds of land belonging to any person, then being within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or non-resident within this commonwealth, shall not be conclusive as to such person or persons until five years after their respective incapacities or disabilities are removed or determined. Sec. 2412. When processioning not to bar action of ejectment, &c.-This Id., § 7. chapter shall not bar or in any way interfere with any action of ejectment or unlawful entry or detainer brought before the processioners shall have gone upon any tract of land for the purpose of processioning the same. TITLE 30. ESTATES HOW CONVEYED OR WILLED; WHO TAKE IN CASE OF INTESTACY; CH. 107. General rules as to the creation and limitation of estates; and their qualities. 108. Forms of deeds and covenants. 109. Of acts valid between the parties, but void as to creditors and purchasers. 110. Of the vendor's lien, and of the lien of mechanics and others. 111. Of the authentication and record of deeds and other writings. 112. Of wills. 113. Of descents and distributions. CHAPTER CVII. GENERAL RULES AS TO THE CREATION AND LIMITATION OF ESTATES; AND Code 1849, Sec. 2413. When deed or will necessary to convey estate; partition of p. 500, c. 116, § 1. lands to be by deed; gift of lands to be in writing. No estate of inheri tance or freehold, or for a term of more than five years, in lands, shall be conveyed unless by deed* or will, nor shall any voluntary partition of lands by co-parceners, having such an estate therein, be made, except by deed; nor shall any right to a conveyance of any such estate or term in land accrue to the donee of the land or those claiming under him, under a gift or promise of gift of the same hereafter made and not in writing, although such gift or promise be followed by possession thereunder and improvement of the land by the donee or those claiming under him.‡ *7 Leigh, 566; 10 Leigh, 57; 28 Gratt., 423, 435-6. +76 Va., 487, 493. 130 Gratt., 255; 76 Va., 72; 79 Va., 60; Grigsby vs. Osborn, 10 Va. Law J., 717. 4 Rand., 332. 6 Rand, 135, 540, 762. 3 Sec. 2414. When gift of goods and chattels invalid.-No gift* of any Id. goods or chattels shall be valid, unless by deed or will, or unless actual possession shall have come to and remained with the donee, or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be a sufficient possession within the meaning of this section. Leigh, 147. 7 Leigh, 119. 11 Leigh, 439. 9 Leigh, 245. 3 Gratt., 1. 102. 297. Sec. 2415. When person not named a party, or named jointly with others, ¡d., 62. Post sec. 2860. may take or sue under instrument.-An immediate estate or interest in or 12 Leigh, 204. the benefit of a condition respecting any estate may be taken by a per- 21 Gratt., 96, son under an instrument, although he be not a party thereto; and if a 24 Gratt., 294, covenant or promise be made for the sole benefit of a person with whom 76 Va.. 355, 360. it is not made, or with whom it is made jointly with others, such person may maintain in his own name any action thereon, which he might maintain in case it had been made with him only, and the consideration had moved from him to the party making such covenant or promise. Id, §3. 8 Leigh. 158. 8 Gratt., 241. Sec. 2416. Deeds made by attorneys-in-fact.-If, in a deed made by one as attorney-in-fact for another, the words of conveyance or the signature 5 Gratt., 111. be in the name of the attorney, it shall be as much the principal's deed 15 Gratt. 202. as if the words of conveyance or the signature were in the name of the principal by the attorney, if it be manifest on the face of the deed that it should be construed to be that of the principal to give effect to its intent. Sec. 2417. Estates to lie in grant as well as in livery.-All real estate Id., §4. shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. 3 Call, 475, 488. Sec. 2418. Disposal of interest in real estate; estates by deed may com- 18., 55. mence in futuro; executory limitations by deed.-Any interest in or claim 13 Gratt. 587. to real estate may be disposed of by deed or will. Any estate may be 15 Gratt, 339. made to commence in futuro, by deed, in like manner as by will; and any estate which would be good as an executory devise or bequest, shall be good if created by deed. 1 Wash., 388. 3 Rand., 361. Sec. 2419. Deed good for grantor's right. Operation of warranty.-A 1d.. p. 501, 27. writing which purports to pass or assure a greater right or interest in real 1 Call, 174. estate than the person making it may lawfully pass or assure, shall operate 2 Rand. 549. as an alienation of such right or interest in the said real estate as such 5 Gratt.. 64. person might lawfully convey or assure; and when the deed of the alienor mentions that he and his heirs will warrant what it purports to pass or assure, if any thing descends from him, his heirs shall be barred for the value of what is so descended or liable for such value. 1 Wash.. 100. 1 Munf., 517, Sec. 2420. Words of limitation dispensed with.-Where any real estate Id. 28. is conveyed, devised, or granted to any person without any words of lim- 1 Call, 127. itation, such devise, conveyance, or grant shall be construed to pass the 3 Call 306. fee simple or other the whole estate or interest which the testator or 549. grantor had power to dispose of in such real estate, unless a contrary 3 Rand., 280. intention shall appear by the will, conveyance, or grant. 2 Munf., 458. 29 Gratt. 448, 454. 31 Gratt..,43, 46. 557. Sec. 2421. Fee tail converted into fee simple.-Every estate in lands so 32 Gratt., 544, limited, that, as the law was on the seventh day of October in the year 76 Va., 724, 728. seventeen hundred and seventy-six, such estate would have been an Id., §9. estate tail, shall be deemed an estate in fee simple; and every limitation Donatio mortis causa, 4 Gratt., 472; 11 Gratt., 182; 23 Gratt., 342; 107 U. S., 602. Id., § 10. Id., p. 501, § 11. Id., p. 502, 12. Id., 13. Id., § 14. 2 Call., 263. 4 Munf., 473. 2 Leigh, 356. 19 Gratt., 720. · Id, § 15. Id., $ 16. upon such an estate shall be held valid, if the same would be valid when Sec. 2423. Effect of estate of freehold to one with limitation over by way of remainder to heirs, &c. Rule in Shelley's case abolished.-Wherever any person, by deed, will, or other writing, takes an estate of freehold in land, or takes such an estate in personal property, as would be an estate of freehold, if it were an estate in land, and in the same deed, will, or writing, an estate is afterwards limited by way of remainder, either mediately or immediately, to his heirs, or the heirs of his body, or his issue, the words "heirs,"" heirs of his body," and "issue," or other words of like import used in the deed, will, or writing in the limitation therein by way of remainder, shall not be construed as words of limitation carrying to such person the inheritance as to the land, or the absolute estate as to the personal property, but they shall be construed as words of purchase, creating a remainder in the heirs, heirs of the body, or issue.* Sec. 2424. When contingent remainder not to fail.-A contingent remainder shall in no case fail for want of a particular estate to support it. Sec. 2425. When remainders not defeated. The alienation of a particular estate on which a remainder depends, or the union of such estate with the inheritance by purchase or descent, shall not operate, by merger or otherwise, to defeat, impair, or otherwise affect such remainder. Sec. 2426. In what conveyances, possession transferred to the use.-By deed of bargain and sale, or by deeds of lease and release, or by covenant to stand seized to the use, or deed operating by way of covenant to stand seized to the use, the possession of the bargainor, releasor, or covenantor, shall be deemed transferred to the bargainee, releasee, or person entitled to the use, for the estate or interest which such person has in the use, as perfectly as if the bargainee, releasee, or person entitled to the use, had been enfeoffed with livery of seisin of the land intended to be conveyed by such deed or covenant. Sec. 2427. Deed of release effectual.--Every deed of release of any estate or interest, capable of passing by deeds of lease or release, shall be as effectual for the purposes therein expressed, without the execution of a lease, as if the same had been executed. Sec. 2428. Estates in trust to be subject to debts of beneficiaries.-Estates 6 Rand., 307-8. of every kind, holden or possessed in trust, shall be subject to debts and 2 Leigh, 268. 2 Rob., 377. *See 2 Minor's Insts., 341-353 (marg pp.); 2 Wash., 9; 1 Call., 165; 3 Call., 342, 354, 501 ; 1 H. & M, 240, 559; 5 Munf., 242; 5 Rand., 273, 308; 1 Leigh, 368; 4 Leigh, 90; 8 Leigh, 449; 9 Leigh, 253; 2 Gratt., 506; 6 Gratt., 27, 456; 8 Gratt., 346; 11 Gratt., 78; 12 Gratt., 135, 425; 13 Gratt., 289; 17 Gratt., 8; 25 Gratt., 70; 27 Gratt., 1; 29 Gratt., 448; 31 Gratt., 43; 76 Va., 140; 2 Minor's Insts. (341-2, 392-400); Hood vs. Haden, 11 Va. Law J., 304; Stokes vs Van Wyck (not yet reported). Limitations void for repugnancy, 4 Rand., 547; 2 Leigh, 377; 3 Leigh, 348; 6 Gratt., 424; 20 Gratt., 692; 26 Gratt., 384; 32 Gratt., 357; 78 Va., 197; 79 Va., 251; Blair es. Muse 11 Va. Law J. 566. 1 |