That

jected to his testimony on the ground that he was an incompetent witness under section 3348 of the Code. section is as follows:

"And where such contract or transaction was personally and solely made or had with an agent of one of the parties thereto, and such agent is dead or otherwise incapable of testifying, the other party shall not be admitted to testify in his own favor or in favor of a person having an interest adverse to the principal of such agent, unless he be first called to testify on behalf of said principal or some person claiming under him, or the testimony of such agent be first read or given in evidence by his principal or other person claiming under him, or unless the said principa! has first testified."

The witness testified to some extent in regard to the alleged compromise agreement with Col Newlee, but did so with the understanding that the court was reserving its ruling on the competency of the witness, and the court subsequently took action in regard thereto as indicated by the following statement which was incorporated in the record:

"Now, gentlemen, in regard to the evidence of Mr. Bell and the motion made by counsel for the plaintiff, I want the record to show that the motion of the plaintiff by counsel was sustained by the court. Whereupon, the defendant, by his counsel, moved the court to strike out the foregoing evidence of Mr. Bell from the record so far as it pertains to the establishment of the line between the plaintiff company and the defendant, as had with Col. Newlee, or Dr. Black, both of whom are dead, which motion the court allowed and to which action of the court the defendant by counsel excepted, and the court instructed the jury not to regard the evidence of Mr. Bell with reference to the establishment of said line nor to consider any part thereof.

"And the plaintiff by counsel objected to the witness being allowed to testify at all in the case, having been ren

dered incompetent in the case for one purpose he is incompetent for all, but the court overruled the objection of the plaintiff and permitted the witness to testify over the objection of the plaintiff, to which action of the court the plaintiff excepted."

Thereafter the witness Bell was recalled and was permitted to testify over the objection of the plaintiff at some length with regard to the acts of adverse possession of the defendants. The point made against the admissibility of this evidence is that the witness having been shown to be incompetent for one purpose could not be permitted to testify as to any fact in the case. This objection is based upon the authority of Mason v. Wood, 27 Gratt. (68 Va.) 783; Grigsby V. Simpson, 28 Gratt. (69 Va.) 348; Mutual Life Ins. Co. v. Oliver, 95 Va. 485, and cases of that type.

The question here presented is not free from difficulty. The cases relied upon in support of the objection, or some of them, undoubtedly in terms declare that a witness incompetent for one purpose cannot be permitted to testify to any fact in the case. (See Ely v. Gray, 125 Va., 18 Va. App. post.) We believe, however, that all of these cases have involved single indivisible contracts or subjects of investigation upon which alone the result of the litigation necessarily depended. In the instant case, from the defendants' standpoint, two distinctly separate subjects of investigation are involved, namely, (1) the question of boundary under the description in the Peck and Falconer deed, (2) the claim of adverse possession on the part of the defendants. These are two wholly separate and distinct matters, and neither is merely collateral or incidental to the other. In this view of the case it seems to us that the witness Bell might very properly have been held incompetent to testify as to any matter relating to the true location of the disputed line, and at the same time competent as to any matters relating to adverse possession. His testimony, however, upon the subject of adverse possession was, as we have seen, put to an improper purpose, because, when

viewed in the light of the instructions, it would have tended to establish by adverse possession title to the entire boundary in dispute, when as a matter of fact the actual possession by the defendants, as testified to by Bell, affected only a small part of the minerals, and no color of title to the residue was shown. In our opinion it was proper to permit Bell to testify as to the acts of adverse possession which he mentioned in his evidence, but the jury should have been given to understand that in the absence of color of title, the defendants could not hold any part of the land in dispute by adverse possession except such as they had acquired title to by virtue of their mining operations for the statutory period. Of course their possession of the surface does not affect the case, because if the deed from Jacob Kinzer to Peck and Falconer covered the land in dispute, that deed effected a severance of the title to the surface from the coal and minerals.

The remaining objection to evidence involves the admission of a paper in the handwriting of a deputy county surveyor, C. D. Peck, marked "Survey of the part of the Melvin Tract which the Coal Company is interested in," and containing the notes of a survey which the evidence tends to show was made for the purpose of locating the division line in controversy here in the year 1889, in the presence and under the supervision of Col. Newlee and Mr. Bell. There was no error in admitting this paper. Va. Coal & Iron Co. v. Ison, 114 Va. 144, 153; 7 Va. App. 86; 5 Cyc. 965-967.

For the reasons indicated in the course of this opinion, the judgment complained of must be reversed and the case remanded for a new trial to be had not in conflict with the views herein expressed.

Reversed.

BLANCHARD v. DOMINION NATIONAL BANK.

1.

EQUITY.

(Staunton, September 17, 1919.)

Bill for Injunction-Amendment-Sale of Real Estate Under Deed of Trust-Allegation of Payment of Debt.

2. IDEM.-Bill-Calling for Answers to Specific Interrogatories or Allegations—Waiving Oath.

Appeal from Circuit Court of Washington county.

Affirmed.

Hutton & Hutton and A. H. Blanchard, for the appellant. Peters & Lavinder, W. J. Horseley and Wm. H. Nickels, Jr., for the appellee.

The object of this suit was to enjoin the sale of certain real estate under a deed of trust executed December 31, 1912, by the appellant to secure a loan made to the F. T. Blanchard Company. The deed was made to secure a debt of $9,500, evidenced by bonds of the company, endorsed by F. T. Blanchard and W. T. Neeley, and any renewal or renewals of said bonds, or any part thereof. One of these bonds was for $2,000, payable at sixty days after date, and the other for $7,500 payable four months after date, each with six per cent. interest. The deed also provided that when this debt was reduced to $7,500 or less, certain designated portions of the real estate conveyed should be released. This release was made on October 13, 1913. Afterwards the trustee, at the request of the bank, advertised the residue of the property for sale on November 24, 1914. Thereupon an injunction was obtained from the Circuit Court of Washington county to enjoin the sale. The grounds upon which the injunction was prayed for and granted were: That the debt was a debt of the company upon which Neeley was the first endorser and the appellant second endorser:

that he was a mere surety for the debt; that he had taken active steps to induce the bank to collect the debt out of Neeley who was bound as first endorser, and he was then amply solvent and about to remove his effects to a distant State, but that he was unable to induce the bank to take any steps against Neeley, and as a result of its failure to take the necessary steps all recourse against Neeley had been lost; that he had given the bank written notice to sue Neeley, which it had not done, and that therefore the appellant was released; that the amount due on appellee's debt had not been ascertained and there should be no sale of the property until the amount of the debt had been ascertained; that the notice of the sale by the trustee was, for several reasons, insufficient; that there were outstanding assets of the company in controversy, and if the controversy were decided in favor of the company, it would have ample assets with which to pay its debts; that it would be inequitable and unjust to sell the property under the deed of trust until all remedies against the principal debtor had been exhausted; and that there was a prior deed of trust on the property, the amount of which should be ascertained before the property was sold. The bill makes no suggestion that the debt secured by the deed of trust has been paid. It admits the power and duty of W. T. Neeley, the secretary and treasurer of the company, "to handle the finances and books of the company," and nowhere in any of the subsequent pleadings is this power denied, or is any suggestion made that the company does not owe the debts for which he issued its notes. The bill sets forth the making on April 30, 1913, of the notes of the company by Neeley, as secretary and treasurer, now held by the appellee, and their endorsement by Neeley as first endorser and by the appellant as second endorser, and alleges that they are subject to certain enumerated credits leaving due thereon $4,584 of principal, upon which there is interest due. The bill then admits that "the trust deed is a collateral security simply for the payment of any balance on