M'Cann v. Janes

Decided August 15, 1842

Supreme Court of Virginia · decided 1842-08-15

John Ross having an estate of inheritance in a tract of land in the county of Harrison, and dying intestate, the same descended to his children, ten in number, of whom one was Patsy. She, after the death of her father, married Joseph Janes, and there were children of the marriage.

Decided 1842-08-15

Per curiam.

¶1Decree affirmed.

Neither (it seems) must the plaintiff by his bill seek that which was prayed by the bill here, viz. a decree giving the plaintiff a conveyance of that which the defendant can convey, and allowing the plaintiff to proceed at law to recover damages against the defendant for that which he cannot convey. The first ground taken in the opinion of the judge of the circuit court, to wit, that a court of equity ought not to sustain the bill for a specific performance as to part, and allow the plaintiff to proceed at law for the recovery of damages as to the residue, is that on which the court of appeals affirmed the decree, as the reporter has been informed by one of the judges. On this subject, see Wood v. Rowe, 2 Bligh 595.