
    Jordan v. Eve, Trustee, &c.
    November Term, 1878,
    Richmond.
    1. Incumbrances — Public Hishways. — 3? sells to J a tract of land through which a public highway runs, and conveys the land to J with a covenant against incumbrances. The public highway is not an incumbrance which is included in the covenant and for which J is entitled to compensation,
    a. Court of Equity — Power in tile Case.— The land was conveyed by H to Tv, and the deed was recorded on the 31st of December, 1866. At that time there were judgments docketed against II to the amount of $9,845; but nearly all of them were against H as surety, and the principals in two, amounting to more than $6,000, were good for the money. H had land in the county after the conveyance to R, valued at $140,000. Upon a bill by R against J to subject the land under his vendor’s Ken for the payment of $4,800 of the purchase money then due — Held: The court may decree a sale of the land, reserving the power to dispose of the proceeds of sale so as to protect the purchasers.
    *This case was heard at Staunton, but was decided in Richmond.
    By deed bearing date the 4th of October, 1866, and duly recorded on the 31st of December. 1866, M. G. Harman and wife conveyed to Robert C. Eve a certain tract of land in the county of Augusta, on both sides of the McAdam road, stated to contain four hundred and twenty-nine acres and three roods, it being the same land granted to the said M. G. Harman by Robert P. Harnsberger and wife, by deed bearing date the 22d of February, 1862. The consideration expressed in the deed was their love and affection for their daughter, Willie H. Eve, and her husband. the said Robert C. Eve; and it was upon trust for the use and benefit of these parties during their joint lives, but free from any incumbrance or charge of the said Robert C. Eve; and upon the death of either, for the joint benefit of the survivor and the children of Willie H. Eve during the life of the survivor, and then to the right heirs of said Willie H. Eve. And Robert C. Eve was empowered, with the consent of the said M. G. Harman, to sell the property and reinvest upon the same trusts.
    In 1872 Eve sold and conveyed to the Valley railroad company so much of said land as is occupied by the said railroad track, measuring fifty feet on either side from the centre line of said track, and containing about seven acres.
    On the 28th of October, 1874, Eve made a contract -with William Jordan to sell him the said tract of land, then stated to be four hundred and twenty-two acres, for which Jordan was to convey to Eve another tract of land called the Bagly farm, a certain lot in Staunton, and execute to him his notes for $10,210 in five equal annual instal-ments, with six per cent, interest from date, payable annually. And Eve and wife executed *a deed, in which M. G. Har-man joined, conveying the land to Jordan, and reserving a lien upon the land; and Jordan conveyed the Bagly farm and the Staunton lot to Eve, and executed to him his five bonds, each for $2,042, at one, two, three, four and five years, bearing interest payable annually. The deed from Eve to Jordan, though delivered, has not been put upon record and is not in the record.
    In October. 1876, Eve as trustee, instituted a suit in equity in the circuit court of Augusta county against Jordan, and after setting out in his bill the foregoing facts, he stated that Jordan’s first bond, and the one year’s interest on all of them had been long since due, and the second bond and the interest on the other three would be soon due; and he prayed that his lien upon the land might be enforced by a sale thereof, and from the proceeds of sale the amount due him might be paid, and provision made for the payments that were to fall due; and for general relief.
    Jordan answered the bill. He says he bought the land at $55 per acre, and it was represented by Harman, who, as agent of Eve, made the contract, that there were four hundred and twenty-two acres in the tract, and the amount of purchase money was fixed on that basis; that he had discovered that this quantity was what was contained in the tract before the sale to the railroad company, and he insists he is entitled to an abatement for so much of the land as had been previously sold by Eve to the railroad company.
    He further says, that the deed from Harnsberger and wife to Harman acknowledges the receipt of one-third of the purchase money in cash, and two-thirds in due paper, and reserves a lien on the land; that there a number of these bonds transferred to Harnsberger. and he believes the most of them are still unpaid; and he asks that an account may be ^ordered to ascertain how much of said four hundred and twenty-two acres of land has been heretofore conveyed to the Valley railroad company, and the relative value thereof as compared with the residue of the tract; and to ascertain whether any, and if so which of the claims assigned by Harman to Harnsberger still remains unpaid.
    In November, 1876, the court made a decree referring the cause to Master Commissioner J. W. G. Smith, with directions to take an account showing:
    1. Whether there is any lien on the said land on account of the lien reserved in the deed therefor from Harnsberger to Harman, and if any such lien, the amount and extent thereof.
    3. Whether there is any deficiency in quantity of land sold by Eve to Jordan; and if there is a deficiency in quantity, he will ascertain the extent thereof, and the abatement to be made in the purchase money by reason of such deficiency.
    3. Any other matter deemed pertinent by himself or required by the parties to be so stated. And the commissioner was authorized to require the county surveyor to make such surveys of the land, &c.
    In February, 1877, Commissioner Smith returned his report. On the first subject he says that Harnsberger’s lien on the land was duly released by deed of record in the clerk’s office of the county court of Augusta.
    On the second subject he says he directed the county surveyor to make a survey showing what deficiency there was — first, by reason of the conveyance by Eve to the Valley railroad company; and, second, by reason of a portion of the land being occupied by the Valley pike. Upon this survey, and evidence taken before him, he reports that in respect to the railroad, Jordan is short in land to the amount of one *acre, one rood and 5-45 poles, which, at $55 per acre, would be $70.60, for which Jordan would be entitled to a credit as of October 39th, 1874.
    That Jordan likewise claims credit for the value of the land occupied by the Valley pike or McAdam road. And the commissioner not undertaking to decide the question of law, reports, that if Jordan is entitled to this credit, then he is additionally short of land on this account to the extent of four acres, one rood and twenty-one poles, which, at $55 per acre, is $340.
    Under the third head, the commissioner says, he deemed it pertinent and he was requested by Jordan to inquire into all judgment or other liens binding on said land as belonging to M. G. Harman at the date of recordation of the deed from Harman and wife to Eve, trustee, viz: December 31st, 1866; Up to this date he found, upon examination, twenty judgments against Harman, regularly docketed. Of these there were twelve marked in the docket satisfied, or for benefit of said Harman. He makes a statement of each of the eight not so marked, the whole amount of which, with interest up to March 1st, 1877, is $9,845.85. Of these, however, they are in nearly, if not quite all, cases in which Harman was a surety, and one for $5,188.39, the commissioner says, if not already paid entirely, will be paid out of the assets of J. M. McCue, the principal in the debt; and of another for $923.05, the owner stated in his deposition the principal in the debt is, he believed, good for the money, and he has no idea that Harman will have to pay the money. These two judgments, amounting to $6,110.44, the commissioner deducts from the $9,845.85, leaving only $3,785.40 as lien indebtedness on the land.
    The commissioner further reports that he has been called upon by the plaintiff’s counsel to state specially *what real estate, and its value, said M. G. Har-man owned on the 3lst of December, 1866, other than that conveyed to Eve, trustee. And he finds that exclusive of the land bought by Jordan of Eve, trustee, the said M. G. Harman stood assessed on the commissioners’ books of December 31st, 1866, with real property in Augusta county in the value of $123,201.50; and it was proved that he had in the city of Staunton real estate valued at $20,000.
    It appears from the assessor’s land books, that for the years 1867 to 1872, Eve, trustee, is assessed with four hundred and thirty-nine three-fourth acres of land, and for 1873, he is assessed with four hundred and sixteen acres (thirteen acres having been transferred to the Valley railroad company, as per note on assessor’s books).
    Jordan excepted to the report—
    First. Because he should have been allowed a deduction for six acres sold to the railroad company, instead of one acre and a fraction allowed by the commissioner; and for the bed of the McAdam road four acres, making in all ten acres.
    Second. That the plaintiff sold to Jordan four hundred and twenty-two acres of land, the title good, and free from all incum-brance. The commissioner reports judgments against M. G. Harman prior to his conveyance to the plaintiff amounting to $9,845.86, which now stands lifen upon the land; and it was the duty of the plaintiff to remove them before he can demand the payment of the purchase money.
    Third. The McAdam road, if merely an easement, still it is an incumbrance, and should be removed by the plaintiff, or Jordan should be compensated for it.
    The cause came on to be heard on the 16th of June, 1877, when the- court overruled all the exceptions of *the defendant and confirmed the report of the commissioner, and declaring that the court proposed to see to the proper disbursement of the purchase money due from Jordan; that Jordan should pay to the general receiver of the court the purchase money then due, viz: $4,819.12, with interest on $4,084.00 from the 29th of October, 1874, subject to a credit of $70.60 as of that date, for the deficiency on the land, within ninety days from the rising of the court; and if not paid, commissioners named were appointed to sell the land on terms stated in the decree. And Jordan thereupon applied to this court for an appeal; which was allowed.
    D. & A. H. Fultz, for the appellant.
    G. M. Cochran, Jr., for the appellee.
    
      
      Heeds — Covenant—Incumbrances — Public llijiliway. — The finding of the first headnote of the principal case is affirmed in Deacons v. Doyle, 75 Va. 258; 2 Min. Inst. (4th Ed.) 721. Distinguished in Trice v. liuyton, 84 Va. 23 7, the facts in which case were that a lot in the city of Norfolk was sold and conveyed oy metes and bounds with covenants for quiet enjoyment, free from incumbrances and it was discovered later that the house and fence encroached upon the street. Held, that the encroachment of house and fence upon the street was a hidden fact and a breach of the warranty. See also Scott v. Rental, 23 Gratt. 1; Barr v. Fleming, 29 W. Va. 326; Patton v. Quarrier, 18 W. Va. 447, where the principal case is cited and sustained.
    
   STAPLES, J-,

delivered the opinion of the court.

The first ground of error assigned in the petition for an appeal is the refusal of the court below to allow the appellant compensation for an alleged deficiency in the land. It is claimed that the deed of Harman and wife conveyed to the appellee four hundred and twenty-nine and a half acres; that thirteen acres were afterwards transferred to the Valley railroad company, leaving only four hundred and sixteen acres in the tract; whereas the deed to the appellant is for four hundred and twenty-two acres. The survey made in the cause shows, however, there are four hundred and twenty acres, two roods and thirty-four poles in the tract, being a deficiency only of one acre, one rood and five forty-fifth poles; and for this the appellant has been allowed compensation by the decree of the circuit court. The accuracy of this survey has not been ^impeached by the appellant. The mistake was probably made by the assessor in his estimate of the quantity transferred to the railroad company. Instead of thirteen acres it ought to have been nine. It is very certain the appellant gets all the land for which he has paid, or has contracted to pay. This ground of error is therefore not well taken.

The next error assigned is in failing to allow the appellant compensation for so much of the land as is occupied by the Valley turnpike, a McAdam road running from Staun-ton to Winchester. It is insisted that the appellant by the terms of his contract is entitled to all the land purchased by him, within the metes and bounds specified in his deed, free from all incumbrances of every description, and that the road in question is a perpetual easement or incumbrance upon the land.

The deed to the appellant is not in the record, and we have no means of ascertaining the nature of the covenants contained j in it. If it be a mere covenant of warranty | of seisin, or of a good right to convey, ac- [ cording to all the authorities it is not broken j by the existence of a highway upon the land. 2 Lomax Digest, 347; Whitleck v. Cook & wife, 15 John. R. 483; Rawle on Covenants of Title, p. 80. If on the other hand, the deed contains a covenant against incumbrances, the ques- | tion is not so free from difficulty. In Massachusetts and in most of the New England states, it is held that a highway _ constitutes a breach of the covenant against in- ( cumbrances. In Pennsylvania, Wisconsin and other states, the contrary doctrine prevails. In Whitleck v. Cook & wife, 15 John. R. 483, 490, the deed contained no covenant against incumbrances, but the reasoning of the court is broad enough to apply to covenants of every description. Spencer, J. said: • “It must strike the mind with surprise that a *person who purchases a farm through which a public road runs at the time of purchase, and had run so long before, who must be presumed to have known of the existence of the road, and who chooses to have it included in his purchase, shall turn around on his grantor and complain that the general covenants in the deed have been broken by the existence of what he saw when he purchased, and what must have enhanced the value of the farm. It is hazarding little to say that such an attempt is unjust and inequitable, and contrary to the universal understanding of both vendors and purchasers. If it could succeed a floodgate of litigation would be opened, and for many years to come this kind of action would abound.”

In Patterson v. Arthurs, 9 Watts R. 152, the purchaser claimed an abatement of the purchase money because of a public road which passed over the lots sold. The court expressed its surprise that a highway should ever have been imagined an incumbrance within the covenant, and its belief that it had been the universal understanding of both sellers and purchasers in Pennsylvania, that the covenant against iricumbrances did not extend to public roads. Although a public highway no doubt is in many instances an injury instead of a benefit to the holder or owner of the land upon which it is located, and therefore tends to lessen its value in the estimation of the purchaser, yet it is fair to presume that every purchaser before he closes his contract for his purchase of land, has seen it and made himself acquainted with its locality and the state and condition of it; and consequently if there be a public road or highway open and in use upon it, he must be taken to have seen it and to have fixed in his own mind the price he was willing to give for the land with reference to the road, either making the price less or more as he conceived *the road to be injurious or advantageous to the occupation and enjoyment of the land.

We are of opinion that these views of the New York and Pennsylvania courts are in accord with the general understanding and usage in Virginia on this subject. With us it has never been supposed that the vendor in conveying his land is required to make an express reservation or exception with respect to the highway upon the tract, or else to submit to an abatement of the purchase money. A public highway is generally regarded as a benefit to the land; and whether so or not, the purchaser is presumed to have taken it into ^consideration and to have fixed the price with reference to its supposed advantages or disadvantages. Tf it was once understood as the doctrine of this court that the purchaser is entitled to an abatement or damages for ail easement or in-cumbrance of this kind, in the language of the New York court, it would open the floodgates of litigation in. this state.- Besides it is difficult to see how the damages in'such case can be properly estimated. A public highway is a mere easement. It does not take away the right of freeholder in the soil. That continues in the owner in the same manner it was before the highway was established, subject only to the easement. The owner still retains his property in the mines, quaries, springs of water, timber and earth not incompatible with the public right of way. He may maintain trespass, ejectment, or waste in 'respect to the same. And upon the abandonment or discontinuance of the way the property and right of enjoyment revert to the proprietor of the soil. Washburn on Easements and Servitudes, 228; Warwick & Barksda-le v. Mayo, 15 Gratt. 545.

These elements must of course be taken into consideration, as also the peculiar benefits the owner derives from the location of the road, in estimating, the *damages or abatement to which the purchaser may be entitled. It is obvious that theáe contingencies were never contemplated by the parties, and the most reasonable inference is, that they contracted with reference to the then condition and'state of the property as it appeared and was known to both. This ground of error is therefore overruled.

The next error assigned is, that at the date of the conveyance to the appellee, Eve, there were unsatisfied judgments to a large amount against Harman, constituting liens upon the land, which ought to have been removed before any decree for a sale. The commissioner to whom the whole matter was- referred for investigation, reports judgments against Harman unsatisfied, and constituting liens on the land to the amount of nine thousand eight hundred and fifty-five dollars and eighty-five cents. The larger portion of these judgments are upon debts for which Harman was bound only as surety, with perfectly solvent principles. One of the judgments, amounting to more than five thousand dollars, the commissioner reports if not already,paid will certainly be paid out of the assets of J. Marshall McCue; so that the liens by judgment will not exceed four thousand dollars. To satisfy these, the commissioner reports real estate belonging to Harman in Augusta county of the value of $1&2,000, and the testimony shows there is real property in the city of Staunton of the value at least $20,000. The learned counsel for the appellant insists that this property is shingled over with judgment liens and trust deeds amounting to more than double its value. The true inquiry, however, is as to the liens upon the land at the time of the conveyance to the appellee and his wife in October, 1866. No liens subsequently acquired against Harma'n could effect the lands in the hands of the appellee, or those claiming under him. The. report *of the commissioner already adverted to, showing these liens, was made at the request of the app diant. The examination upon which that report was founded was at his instance, and he has offered no evidence, documentary or otherwise, invalidating the statements of the commissioner. It must be assumed, therefore, that there is real estate whose value is ten times the amount of the judgments -which must first fee subjected before the land ©f appella-nt can be touched. Besides this, it is provided in the decree that the court will- see to the proper disbursement of the purchase money. The purchaser of the land will also have in his own hand the deferred instalments of the purchase money, falling due in six, eighteen, thirty, and forty-two months, for his own indemnity, in the event the parties primarily bound for the debts shall become insolvent, and the real estate of Harman shall be insufficient to satisfy the judgments. Under such circumstances the most timid purchaser could not have the slightest apprehension of a title acquired under the decree of the court.

This disposes of all the errors assigned in the petition and in the argument of the appellant’s counsel before this court. For the reasons stated, we are of opinion the decree of the circuit court is plainly right, and must be affirmed.

Decree affirmed.  