Volume 2 — Patton & Heath's Virginia Reports

In April, 1849, Benjamin Barrow, ex’or of William Barrow, dec’d, obtained against James Arnold, a judgment for $1,000, on a bond executed by Arnold to his testator in 1836. Arnold obtained an injunction against the execution of this judgment, which in 1849 was dissolved by a decree of the Circuit Court of Franklin, in which all these proceedings were had. From this decree Arnold appealed to this court. *The facts of the case sufficiently appear in the opinion of Judge Field.

Richard Lorton filed a bill in 1844, in the Circuit Court of Richmond, against Samuel Pleasants, alleging that said Pleasants had borrowed of him some time before $500, and had also borrowed from his wife, as his agent, the further sum of $450, either at one time or at different times; that he had no evidence or memorandum of the loans, and could not prove them except by an appeal to the conscience of Pleasants; he, therefore, prayed that he might be required to answer and…

Joseph Janney was entitled, by assignment, to the benefit of three judgments rendered by the Superior Court for the County of Berkeley on… Held: 1st, That the claim of the Farmers and Mechanics Bank of Georgetown was a lien on the mortgage lands, prior to the Lloyd judgment, and that Alexander Stephen having paid off the note secured by the deed in favor of the bank, was entitled to the benefit of this prior lien. 2d, That the legacy to Mrs. Lauck was a specific charge upon…

*Samuel Ashby, of the county of Fauquier, being- the owner of a considerable estate, consisting of a farm, slaves, stock, &c., died in 1816, leaving a widow, named Martha, and eight children, viz: Maria, who intermarried with Samuel Chancellor, Mary, who intermarried with Taliaferro P. Grantham, Catharine, who intermarried with Philip A. Tutt, John J. Ashby, William C. Ashby, Martha Ashby, Caroline Ashby, and John H. Ashby, commonly called Henry Ashby.

In October, 1851, a petition was filed in the clerk’s office of the Circuit Court, of Henrico county by Henry Anderson, setting forth that on the 24th day of September, 1847, he purchased from the Commonwealth of Virginia, a land office treasury warrant (No. 16,736) and shortly thereafter, to wit: on the 6th day of October, 1847, he deposited the same with Wm.

On the 7th April, 1843, Elisha Barksdale, Jr., exhibited his bill in the Circuit Court of Halifax county against John Hendree and others, in which he set forth that in the latter part of the year 1841, he sold to said Hendree a house and lot in the village' of Halifax Court House for the sum of S2,500, in three equal annual installments of $833 33%, the first of which was due the 25th December, 1842; that Hendree took possession of the lot, and continued in the actual…

Marcus JE)lcan, of the city of Richmond, died somewhere between the 13th August, 1805, and the 9th May, 1808, leaving a will dated on the first day and proved and recorded on the last. In the first clause of his will, he makes some special legacies to Charles Macmurdo and Joseph Marx, and appoints them his executors.

Henry Toler and five others, children of Henry .Toler the elder, deceased, filed their bill in March, 183S, in the Circuit Court of Caroline, seeking- to recover the share of their ■ father, the said… Held: (Morris v. Morris, adm’r, 4 Grat. 295,) irregular to decree in favor pf an administrator de bonis non against the administrator of a previous administrator, the legatees not being parties, nor assenting to it.

From the bill of exceptions in this cause, it appeared that on the 22d day of April, 1842, James G. Blakey drew his note, payable sixty days after date, to the order of James Blakey, negotiable and payable at the office of discount and deposit of the Bank of Virginia, at Fredericksburg, for $4,000.

John Baker died in 1823, leaving a wife and four children, and directed his executor to sell all his estate, real and personal, except such as he had given to his wife and children specifically, and to invest the proceeds in stock, the dividends on which were to be divided among his wife and children —to his wife one-third’ and to his children two-thirds; and at the death of his wife the principal to be divided among his children.

In December, 1849, Thomas Baxter brought an action of indebitatus assumpsit, in the Circuit Court of Henrico, against Benjamin Davis, to recover of said Davis a balance of $3,880 03, for work and labor performed and materials furnished in the erection of a building for Davis in the city of Richmond. The declaration contained three.counts' — the general indebitatus, the quantum meruit and valebat, and the in-simul computassent.

*This was a proceeding' in. equity, in the nature of a foreign attachment, instituted by Rambert and McKenzie in the Circuit Court of the U. S. for Alexandria county in the District of… Held: that in a suit by endorsee against his endorser, the endorsement is evidence of debt under money counts, and in such case no evidencce of the debt or contract is required ; for the further proof of demand on maker, is only to show that the conditional has become an absolute debt.

In July, 1847, William O. Winston and William T. H. Pollard, executors of Alice B. Winston, dec’d, William T. H. Pollard, executor of Harriet W. Winston, dec’d, William W. Jones, executor of Martha L. Jones, dec’d, and Catherine R. Shore, filed their bill in the Circuit Court of Hanover, setting forth, that William O. Winston, father of said Harriet, Alice, Martha and Catherine, died in 1817, leaving a will, by which he devised the residuum of his estate to his said four…

On the 29th August, 1843, Jacob T. Coles and Thos. W. Wooding entered into a contract under seal, by which Coles agreed to sell to Wooding a tract of land, at the price of eleven dollars per acre, the land to be*surveyed and a good title made to Wooding, who was to pay one-half the purchase money on the first of November following, and the residue in three equal installments, payable respectively on the first day of June in the years 1845, 1846 and 1847.

On the 17th November, 1845, a writ of right issued from the Circuit Superior Court of Law for the county of Pittsyl-vania, in behalf of John Coles,… Held: that the de-mandants must prove the character in which they sue. *It is well settled, that a marked line is to be preferred to a line by courses and distances. Here, if one course is omitted, the two lines concur. The case of Smith v. Davis, 4 Grat. 50, turned upon the proved intention of the parties, which prevailed.

Ann Jane Boyden was twice married. About the year 1831 she intermarried with her first husband, Edward W. Curd, who died in the year 1847, and in the following year she intermarried with the appellant, Lucius Boyden. During the coverture of the said Ann Jane with her first husband, he was seized in fee simple of several parcels of land, all of which he sold and during the coverture conveyed to sundry-persons, without the assent or relinquishment of the said Ann Jane.

William Anderson, jr., brought an action of debt in the Circuit Court for the countj, of Fluvanna, upon a negotiable note for $1,000, of which Albert G. Shepherd and Robert E). Nelson, partners, under the firm of Shepherd & Nelson, were the makers, and Martin Tutwiler and J. J. Faris & Co., a firm consisting'of J. J. Faris, Peter C. Hogg and Abraham Whitmore, were endorsers.

Richard H. Heath died in the year 1846, leaving' a will, which contained tjie following clause: ‘ ‘I give and bequeath my estate, except what I shall hereinafter name, both real and personal, to my brother Benjamin B. Heath’s children; providing either of them shall live to the age of twenty-one.

In 1807, John H. Saunders and others, devisees and legatees of Branch Tanner, deceased, filed their bill, in the Superior Court of Chancery for the Richmond District, against Peter E. Archer, administrator with the will annexed of Branch Tanner, deceased, and the sureties in his administration bond, to recover whatever might be found to be due to the plaintiffs upon a settlement of the administration accounts.

The will of Roger Shackelford, admitted to probat as a will of personalty, in the County Court of Essex, in the year 1829, was in the following words: “In the name of God, amen.

This was an action of detinue, in the circuit Superior Court for the county of Campbell, for a negro slave, by Jonathan Christian, trustee, against George W. Yancey. Issue was joined on the plea of non detinet.

Four thousand acres of land in that portion of Amherst county out of which the county of Nelson was afterwards formed, were surveyed and taken up for Thomas Doswell and John-Drummond. In the year 1768, partition of this tract was made, and two thousand acres thereof were allotted to John and Henly Drummond, the heirs of their deceased father, John Drummond. In 1794, they sold and conveyed this tract to John Tyler.

This was an action of debt, in the Circuit Superior Court of the town of Petersburg, by the Exchange Bank of Virginia, against Patrick Durkin, the… Held: that the “understanding” of the Board was sufficient, without any vote or resolution, and it might be proved by the evidence of its acts. The bank may have the benefit of the contracts of its officers, as well as be bound by their acts, without the observance of any particular forms. Bank U. S. v. Dandridge, 12 Wheat.' 79.

On the motion of the Richmond and Petersburg- Railroad Company, the County Court of Chesterfield, on the 10th day of April, 1837, appointed five persons to ascertain the damages, which the proprietors of several tracts of land, on the line of that road, would sustain by the opening of the said road through their lands.

On the first day of September, in the year 1808, Matthew Beard and Margaret his wife, conveyed to Thomas Hatton Kel-lam the reversion of the said Margaret, after reserving a life estate to the said Margaret, in and to a certain tract of land in the county of Accomac by deed, as follows : “This indenture, made this the first day of September, in the year of our Lord one thousand eight hundred and eight, between Matthew Beard and Margaret his wife, of the one part, and Thomas…

On the seventh day of October, 1839, Martha Whiting (who was Martha Shield) then the wife of John C. Whiting, of Elizabeth City county, joined with her husband in executing to Gill A. Cary of said county, a deed of trust, for the purpose of securing the payment of certain debts then due to William Jennings and Ann Robinson.

Creed Haskins of the county of Brunswick, died in the year 1848, leaving an olo-graph will, which contained the following provisions: “I, Creed Haskins, of sound mind and disposing memory, do hereby make my last will and testament, in manner and form following, to wit: I give to the child of my deceased daughter Julia, the following ne-groes: John (Reese) and his wife Delily, and all of their children and their increase.

In the year 1846, Dawson Wheatley, the administrator de bonis non of Philagathus Roberts, exhibited his bill on the chancery side of the Circuit Superior Court of Daw and Chancery for Culpeper… Held: that there must be two-witnesses, or one witness and corroborating circumstances, to overcome the denial of the answer. Thornton v. Gordon, 2 Rob. 726. But this means no more, than that one witness is not enough to countervail an answer responsive to the bill.

The facts of this case are fully stated in the opinion of the court. The lot in controversy was purchased for partnership purposes, and the conveyance made to Neale & Bennett, who were tenants in common thereof. Brooke v. Washington, 8 Grat. 248. The surrender of the deed to Neale & Bennett to Rawlings by Neale, did not divest the title of Neale & Bennett. Grayson v. Richards, 10 Heigh, 57.

Philip M. Thompson, administrator de .bonis non of Garland Thompson, dec’d, who was the assignee of Nathaniel Thompson, brought an action of debt in the Circuit Superior Court of haw and Chancery for the county of Henrico and city of Richmond, against Joseph Mayo, administrator de bonis non of Thomas Mitchell, dec’d, on a bond with condition in the penalty of •$S42 84.

Ou the Sth day of September, 1844, Henry M. Wood and Abraham Shepherd, jr., entered into an agreement in writing under seal, as follows: “Abraham Shepherd, jr., and Henry M. Wood, agree as followsThat whereas there has been many business transactions between them and between said Wood and the several firms a-t Palmyra, of which said Shepherd has been a member, some of which transactions .have been closed by Wood’s giving his bonds, and others are yet unclosed, and upon them…

This case is now in the-Court of Appeals for the third time. On the first appeal, it is reported under the name Burnley’s adm’r v. Duke et als., 1 Rand. 108; and on the second, under the name of Burnley’s representatives v. Duke et als., 2 Rob. 102.

<p>1. Judicial Sales* — Purchasers—How Compelled to Complete Purchased.† — A purchaser of land, sold under a decree of a court of chancery, may be compelled to comply with the terms of sale and complete his purchase, by paying- cash, if it be a cash sale, or giying bond and security if it be on time, either by process of contempt or by a rule to show cause why the land should not be re-sold,</p> <p>2. Same* — Bonds for Purchase Money — Enforcing Payment by Rule to Show Cause.‡ — Quaere. whether, where the purchaser has complied with the terms of sale, hy paying the cash required and giving; bond and security for the credit payments, and the sale has been confirmed and the purchaser p] aced in possession of the property, the title being retained to secure the payment of the purchase money, the payment of the bonds can be enforced by a rule against the purchaser to shew cause why there should not be a re-sale of the property ?</p> <p>3. Same* — When Resale under Rule to Show Cause Erroneous. — But it is clearly erroneous, to decree a re-sale under such a rule, where the purchaser has complied with the terms of the sale, and there is no necessity for a speedy collection of the purchase money, no proof of any default in the payment of the bonds, and no suggestion or proof of the insolvency of the purchaser or his sureties.</p> <p>4. Same* — Bonds for Purchase Money — Collection.— The proper’course is to order the collection of the bonds by suit, if not paid without.</p> <p>5. Same* — Two Commissioners — Sale by One. — when two commissioners are appointed by a decree of a court of equity to sell land, a sale by one only is irregular.</p> <p>6. Same* — Enforcement of Vendor’s Lien — Day to Redeem.§ — It is error, to decree the sale of land to enforce a lien retained for the payment of the purchase- money, without giving a day to the purchaser to redeem the land by paying what is due. (Kyles v. Tait’s adm’r, 6 Grat. 44, accord.)</p>

The will of Willis Wootten, which was proved in the County Court of Warwick on the 14th January, 1847, contained the following provisions: “Item. I give to my grand-daughter Sarah Charles the slaves, namely, Daniel, Milly and her increase, now in the possession of her father Henrj' H. Charles; also the sum of five hundred dollars; with this proviso, that she lives to attain the age of eighteen years, or marries.

On the 19th of June', 1838, Thomas A. H. Evans executed his bond to George W. E. Smith for one thousand dollars, payable twelve months after… Held: that there was no obligation on the creditor by reason of the usurious contract, and the fact of the payment of the money makes no difference as to the effect of the contract. in reply: In Chichester v. Mason, 7 Leigh, 244, Cabell and Brooke, Js., held, that the countermanding an execution in the hands of a sheriff before levy…

John Epes, of the county of Nottoway, died in the year 1816, leaving a will, dated 26th January, 1816, which was admitted to probate by the County Court of Nottoway at its November term, in the year 1816.

In Jnl3T, 1847, Robert B. Bolling, executor of Robert Bolling, deceased, and Thomas B. Bond, filed their bill in the Circuit Court of Nottoway, representing that they were each creditors of George W.… Held: that when one allows his name as a party to a fraudulent assignment, he is liable to account for the property, though no part of it came to his hands. Hughes v. Bloomer et als., 9 Paige, 269.

This was a suit in chancery by Jonas Walraven, in the Circuit Court of Jefferson, against William E. Eock, Isler and wife, (judgment creditors of Walraven,) and the heirs of the sheriff of Jefferson ; seeking to establish a trust in favor of the plaintiff, on certain lands, held in the name of Lock, by an absolute deed. At the hearing in July, 1845, the court dismissed the bill, and from this decree Walraven appealed to this comet.

In December, 1846, Napoleon B. Magruder filed his bill in the Circuit Court of Greens-ville, representing that in August, 1828, his uncle Edward O. Goodwyn -'qualified as his guardian in Dinwid-die County Court, and entered into bond in the penalty of $20,000, with Albert T. Goodwyn, Peterson Goodwyn and James H. Boisseau as his securities, conditioned for the faithful discharge of his duties as such guardian.

James W. M’Mullan, administrator de bonis non of Joel Jarrell, dec’d, filed his bill in Greene Circuit Court, in November, 1851, setting forth that Joel Jarrell had died intestate some years before, and that Mrs. Olivia Jarrell, his wife, qualified as his administratrix; that subsequently her powers were revoked and the plaintiff was appointed in her stead; that ParmeUa Ed-dins had obtained a judgment against the-administratrix, and had afterwards sued her and her sureties,…

In September, 1843, Archer Hayes brought an action of detinue, in the Circuit Court of Mecklenburg, against Isaac H. Jones, for a slave named Rossetta. At the first trial of the cause, in May, 1844, the jury found for the plaintiff, assessing the value of the girl at $375, and giving $25 damages for her detention. The verdict was set aside by the court, on the motion of the defendant, and a new trial was awarded to him.

In December, 1846, Samuel Hale petitioned the County Court of Franklin for leave to build a water grist and saw mill on Gill’s creek, he owning the land on both sides. At his instance a writ of ad quod damnum issued, and the jury summoned under the writ ascertained that the lands of Patrick Hix would be injured *to the amount of s>225, that no other lands would be injured by it, and that it would not be injurious to the health of the neighborhood.

In August, 1848, John T. White and others, administrators of several of the dis-tributees of William Tinsley, dec’d, filed their bill in the Circuit Court of Hanover, against Anthony Street’s executors, from which it appeared, that said Tinsley died intestate without issue, and possessed among other things of a large number of slaves.

In January, 18S0, John M. Speed brought an action of assumpsit, in the Circuit Court of Lynchburg, against James E. Horner, on alleged new promises to pay to Speed a debt of 12,000, due him by… Held: that the facts were sufficient to support the plaintiff’s action, and gave judgment for him *accordingly. From this judgment the defendant appealed to this court.

. This was an appeal by the heirs of one Henry De Ende from a decree of the Circuit Court of Cumberland, rendered on the 30th August, 1850, directing- them to pay to Bacon Tait and the executor of James P. Wilkinson respectively, $1,923 32 and $3,591 36, with interest and costs. The facts of the case are sufficients stated in the opinion of EIEED, P.

The facts of this case are sufficiently stated in the opinion of NASH, J. The argument of the cause in this court was very full and elaborate, upon the question, whether the debts *secured by the two first deeds, and the debt to Edward A. Hill, secured by the last deed, were founded upon usurious transactions, and upon the correctness of the decision of this court, in Roberts’ adm’r v. Kelly, (ante, p. 396,) in regard to the weight and effect of an answer in chancery…