an interest, not a title, of which the conditions of insurance speak. The terms interest and title are not synonomous.

A mortgagor in possession, and a purchaser holding under a deed defectively executed, have both of them absolute as well as insurable interests in the property, though neither of them has the legal title. The condition in question speaks only of the character of the interest to be insured, not of its quality."

In Aurys v. Hartford Fire Ins. Co., 17 Iowa 176, the court holds the following language, speaking upon this point, and which very aptly applies to the case before us: The object of the insurance company by this clause (i. e., a claim providing against change of interest, &c.) is, that the interest shall not change, so that the assured shall have a greater temptation or motive to burn the property, or less interest or watchfulness in guarding and preserving it from destruction by fire. Any change in, or transfer of the assured in the property, of a nature calculated to have this effect, is in violation of the policy. But if the real ownership remains the same, if there is no change in the fact of title, but only in the evidence of it, and if the latter change is only nominal, and not of a nature calculated to increase the motive to burn, or diminish the motive to guard the property from loss by fire, the policy is not violated." See also Shepard v. Union Fire Ins. Co., 38 New H. 232.

I am of opinion, both upon principle and authority, that the condition referred to is not a warranty against incumbrance, and that the fact that the assured had incumbered the property was no breach of that condition.

As was said by the president in W. R. F. C. v. Sheets (supra): "There is nothing in this policy (when

March

Manhattan

Fire

Ins. Co.

V.

Weill

1877 fairly construed) which required a disclosure by the Term. insured of the liens upon the insured property. There was no question proposed by the insurer to the insured. in regard to the existence of such liens. The insurers might have examined the records for such liens, and made inquiries about them of the insured, or others, but they failed to do so. Can they now avoid the obligation of the policy on the ground that the insured, without being inquired of, and without any fraud, omitted to give notice of the lien at the time of obtaining the policy? I think they cannot." Page 870.

& Ullman.

I am therefore of opinion that in the absence of all fraud, in the absence of all proof or pretence of any misrepresentation or fraudulent concealment, on the part of the assured, the defense set up by the insurance company, is purely technical, and ought not to shield them against their just liability to the assured for the loss he has sustained.

I am for affirming the judgment of the corporation court of the city of Norfolk.

MONCURE, P., and STAPLES and BURKS, JS., concurred in the opinion of Christian, J.

JUDGMENT Affirmed.

Richmond.

FLOYD, trustee v. HARDING & als.

April 19.

Absent Anderson and Burks, J's.*

In 1856 L sells land to T by parol contract, receives all the purchase
money and puts T into possession. In January 1867 L executes a
deed to T, by which he releases all the land to T, and warrants the
title. T then sells the land to W, and W conveys to F. In March
1866 B recovers a judgment against L, which is docketed within the
year. In a suit against F to subject the land to satisfy the judgment
against L-HELD:

1. That the registry acts do not apply to a parol contract for land,
and T having paid all the purchase money, and having been
put into possession, so that he had a valid equitable title to the
land, it is not subject to the lien of the judgment against L.
2. The valid equitable title of T is not so merged in the legal title
acquired by the deed of L to him, as to subject the land to the
lien of the judgment against L.

3. The principles of the case of Withers v. Carter, 4 Gratt. 407,
approved.

This was a bill filed in the circuit court of Bedford county, by John B. Harding, to subject a certain tract of land in the possession of N. B. Floyd, as trustee of his wife Ellen S. Floyd, to a judgment which had been recovered by Green B. Board against J. M. W. Leftwich, the plaintiff, and two others, on a negotiable note, in which said Leftwich was maker, and the plaintiff and the others were endorsers; and which the plaintiff had satisfied. This judgment was re

*Judge Burks had been counsel in the cause in the circuit court. VOL. XXVIII-51

1877.

March

Term.

1877. March Term.

Floyd,

V.

covered on the 30th March 1866, and was docketed March 16th, 1867.

Floyd answered the bill. And it was proved that as Trustee, early as 1856 J. M. W. Leftwich, by an unwritten parol contract, sold this land to Lewis II. Turnbull, Harding & als. who paid the whole purchase money, and was put into possession. By deed of the 23d of January 1867, which was admitted to record on March 13th 1867, Leftwich and wife released to Turnbull all their claim. upon the land, and warranted the title. Turnbull in June of the same year, sold to John W. Howard; and subsequently under a decree of the court in the case Howard v. Howard, the land was sold and conveyed to N. B. Floyd in trust for his wife Ellen S. Floyd.

The cause came on to be heard on the 7th of October 1872, when the court held that the judgment was a valid lien upon the tract of land conveyed by Leftwich and wife to Turnbull, by their deed of the 23d of January 1867, and now in the possession of Floyd; and decreed that unless the defendants, &c., did within ninety days, pay to the plaintiff the amount of his judgment and the costs of this suit, commissioners named should sell, &c.

From this decree Floyd applied to this court for an appeal; which was allowed.

John W. Daniel, and Haymond, for the appellant.

R. G. H. Kean, for the appellees.

STAPLES, J. There is no controversy in this case in regard to the facts. They are few and simple, and may be briefly stated. In the year 1856 James W. Leftwich sold to Lewis H. Turnbull a tract of land in Bedford county. The contract was not reduced to

1877. March

Floyd, Trustee,

V.

Harding

& als.

writing; but Turnbull was placed in immediate possession, and the whole of the purchase money was paid by Term. him. In January 1867 Leftwich executed to Turnbull a deed of release for the land, with warranty of title. Turnbull shortly afterwards sold and conveyed to Howard, and Howard subsequently in 1868, conveyed to Floyd the appellant. In 1866 a judgment was recovered by Board against Leftwich, the original vendor, in the circuit court of Roanoke, which was duly docketed in the county court of Bedford. The claim here is to subject this land in the hands of Floyd, to the lien of this judgment. The question presented is, whether a parol contract for the sale of land so far executed as to vest in the purchaser a valid equitable title, is good against creditors of the vendor, under the statutes of registration. This question is now exciting no ordinary interest throughout the state. It is understood that numerous cases are pending in the circuit courts, involving a large amount of property, awaiting the decision here. The court has given the subject that consideration its gravity and importance demand.

In the outset it may be well to advert briefly to the case of Withers v. Carter & als、, 4 Gratt. 407. No sound conclusion can be arrived at in this case without a proper understanding of the facts and principles of law involved in that case. There the parties had reduced their contract to writing, and the purchaser was put in possession of the property. Subsequently a deed was executed by the grantor; but it was never recorded, having been lost by the person to whom it was committed to be delivered to the clerk.

At that time the statute required the recordation of deeds, but not of written executory contracts for the sale of land. The court of appeals held that while the