
    Wytheville
    Kelly v. Lehigh Mining and Manufacturing Co.
    June 28, 1900.
    Absent, Riely, J.
    
    1. Chancery Practice—Delivery of Title Papers—Adequate Remedy at Law.—A court of equity has jurisdiction to decree the specific delivery of title papers to heirs at law, devisees and other persons properly entitled to the custody and possession of the same, when they are wrongfully detained, or withheld from them. This is an old and well-settled subject of equity jurisdiction, and is not affected by the fact that a statute gives the complainants a complete and adequate remedy by an action of detinue. In the absence of prohibitory or restrictive words in the statute, courts of equity still retain their jurisdiction in such cases.
    2. Muniments oe Title—Delivery—Oommon-Law Rule—Rule in Virginia. Although, at common law, a grantee of land was entitled to demand and have of his grantor all title deeds and muniments of title, and the same passed with the conveyance of the land without being mentioned in the deed, this common-law rule is not in force in this State, where the public records furnish evidence of title, and where copies therefrom, equally with the originals, are admissible in evidence, and hence the grantee is not entitled, as a matter of law, to demand of his grantor the original muniments of title. In this State the deposit of title deeds creates no lien as against a subsequent dona fide purchaser or encumbrancer.
    3. Continuance—Discretion.—A motion for a continuance is addressed to the sound judicial discretion of the trial court under all the circumstances of the particular case, and its action will not be reversed unless plainly erroneous.
    
      Appeal from a decree of the Circuit Court of Wise county, pronounced December 16, 1898, in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.
    Reversed.
    The opinion states the case.
    
      W. S. Mathews and O. M. Vickars, for the appellant.
    
      R. A. Ayres and Bullitt & Kelly, for the appellee.
    
      
      Judge Riely was prevented by sickness from attending this term.
    
   Buchanan, J.,

delivered the opinion of the court.

A court of equity has jurisdiction to decree- the specific delivery of title papers to heirs -at law, devisees and other persons properly entitled to the custody and possession of the title deeds of their respective estates where they are wrongfully detained or withheld from them. This is an old and well settled head of equity jurisdiction. 1 Story’s Eq. Jur., sec. 703; 1 Pom. Eq. Jur., sec. 185; Snoddy v. Finch, 9 Rich. Eq. 355, (70 Amer. Dec. 216.)

Chapter 138 of the Code, which makes more effective the common-law remedy of detinue, does not affect that jurisdiction, for where courts of equity have once acquired jurisdiction, a subsequent statute which gives to or enlarges the jurisdiction of the common-law courts over the same subject, does not deprive the equity courts of their jurisdiction, although the statute may furnish a complete and adequate remedy at law, unless the statute conferring such jurisdiction uses prohibitory or restrictive words. Filler v. Tyler, 91 Va. 458.

The appellee, the complainant in the court beloAV, based its right to recover the title bonds, agreements, deeds and tax receipts pertaining to the lands conveyed to it by the appellant upon two grounds. Eirst, that it is an established principle of law that whoever is entitled to the land has the right to all the title papers affecting it; and, secondly, that the appellant expressly agreed, in entering into the contract for the sale of the land, that he would turn over to the appellee all the title papers which he had under and by virtue of which he claimed title to the land.

It was conceded that it is an established principle of the common law in England that the party entitled to land had also' a right to all title deeds affecting it, and that they passed with the land by the conveyance without being named in it. Harrington v. Price, 5 Barn. & Adolp. 170 (25 C. L. R. 47-48); 2 Sugden on Vendors, Ch. 11, sec. 4; Williams on Beal Prop. 434. But it is denied that any such rule exists in this country.

In England there was no general system of registering conveyances of real estate. Possession of the title deeds wns an evidence of ownership, and they, or abstracts of them, were shown to the intended purchaser for his examination in negotiations for a sale. When the sale was made, they were delivered to the grantee almost as a matter of course in all conveyances of the fee. Mo transfer of land could he safely made without them, and no one was supposed to have a right to their possession unless he had some claim upon or interest in the land. Whenever a supposed owner offered his estate for sale or mortgage, it was necessary for him to produce Ms title papers, and their absence from Ms possession, when demanded, cast a suspicion upon his title, and put the other party upon enquiry. 3 Pom. Eq. Jur., note 1 to sec. 1264; 2 Minor’s Inst. 354-4 (4tli ed.) But in this State there is a general system of registering title papers to land, and persons desiring to purchase or secure loans by deeds of trust or mortgages look to the records to ascertain the condition of the supposed owner’s title, and seldom, if at all, look to the original title papers, or make inquiry as to the owner’s possession of them.

In this State, the records furnish evidence of his title, as a general rule, -and copies therefrom, equally with the originals, are admissible in eyidence. Code, sec. 3334.

Under our registry laws and statute of conveyances, the deposit of title deeds creates no lien -as against a 'subsequent bona fide purchaser or encumbrancer, as it did in England. Siter, Price & Co. v. McClanahan, 2 Gratt. 314; 2 Minor’s Inst. 353-4 (4th ed.)

The reasons for the common-law rule no longer exist here. In this State, and generally in the United States, it is believed, it is the general practice for the grantor to retain his own title papers instead of delivering them to his grantee. 1 Cruise Digest, Professor Greenleaf’s n'ote to sec. 39, Ch. 1, title 2; 1 Greenleaf’s Ev., sec. .571, note 3; 3 Washburn on Real Prop., sec. 65 (p. 375); Eaton v. Campbell, 7 Pick. 10, 12; White v. Hutchinson, 40 Ala. 258, 88 Am. Dec. 766.

We are of opinion, therefore, that the common-law rule in question is not in force in this State, and that the grantee is not as a matter of law entitled to demand of his grantor the original muniments of title as he was in England. Where the íeason for a rule of law has ceased, the law itself ought to and does cease. Broom’s Legal Maxims (7th ed.), 159.

Upon the calling of the cause at the December term of the court (the first term after the case had been matured at rules), the appellant appeared and filed! bis answer, in which he denied the existence of the agreement set up in the bill. Ilis answer was excepted to upon the ground that it stated no defence to the case made by the bill. At the same time, the appellant moved the court to continue the case, upon the ground that the appellee had not closed its depositions until Monday the 28th day of Hovember, 1898, and that he was not notified1 of that fact until the 29th of that month; that at that time he was engaged as chairman of the Board of Supervisors of Wise county in the business of said board, and was so engaged until Eriday the 2d of December following, and that he did not have time to prepare Ms defence by taking Ms depositions which be was advised were material to Ms defence. Tbe court overruled Ms motion to continue, and sustained tbe exception to bis answer, and tbe appellant, not desiring- to file any other or further answer, tbe court was of opimon that tlie appellee was entitled to tbe relief sought by tbe bill, and so decreed. Tbe action of tbe court in overruling tbe motion to continue tbe cause and in sustaiMng, tbe exception to tbe answer, is also assigned 'as error.

Erran what has been said in discussing tbe demurrer to tbe bill, it is clear that tbe court erred in sustaining tbe exception to tbe answer. It put in issue tbe agreement set up in tbe bill, and tbe exception to if ought to, and doubtless Would have been, overruled, if the court bad not been of tbe opinion 'that tbe appellee was entitled to tbe possession of tbe papers sued for as a matter of law in accordance with tbe English rule. In no other way can tbe court’s action in sustaining tbe exception be understood. Having this view, the court, of course, overruled tbe motion to continue, for there was no issue of fact upon which to take proof, and a continuance of tbe case could have been of no benefit to tbe appellant.

Tbe appellee insists that, as tbe action of tbe court in refusing to continue tbe case was not plainly erroneous, and tbe decree complained of granted only such relief to tbe appellee as be was entitled to upon tbe record as it then stood, treating, tbe exception to the answer as overruled and tbe answer properly in tbe case, tbe decree complained of ought not to be reversed.

It is well settled that every motion for a continuance is addressed to the sound judicial discretion of tbe court under all the circumstances of tbe case, and that an appellate court will not reverse it upon tbe ground that a continuance was improperly granted or denied, unless its action is plainly erroneous. Hite’s Case, 96 Va. 489, 493, and authorities cited. If tbe Circuit Court bad held that tbe 'answer was sufficient, and' then overruled tbe motion to continue, it would have exercised that judicial discretion contemplated in snoh cases, and we are not prepared to say that its action ong-ht to be reversed, although, under the circumstances of the case, the better practice would have been to have continued the case, in order that the appellant might have taken proof to meet the appellee’s depositions, taken and closed so recently before the term of court as not to give the appellant time to take his proof before the term commenced.

Without, therefore, intending to infringe in any manner upon the rule which governs this court in considering the action of a trial court upon a motion to continue, where it was necessary in the view the court took of the case to consider and decide the sufficiency of the grounds upon which the motion was based, we are of opinion that the decree appealed from should be reversed in so far as it sustained the exception to the appellant’s answer, and the cause be remanded to the Circuit. Court for further proceedings to be had therein not in conflict with the views expressed in this opinion.

Reversed.  