Lynchburg Virginian. [volume] (Lynchburg [Va.]) 1829-185?, 1849-01-08
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TIecase oi Iucter aud Smith " .N1tn-;he eabo-
rate argument winch referred 10 by Us some days
ago-was decided on Saturday.
Il came up uu appeal from the decree Of Judge Temp
sen pronounced las. October twelve months, in Alb'-
tnre by wach contract IF purchase made BY John Mac
kay GA behalf Of hu!s.fand Tucker and Smith, )trom
Mis-, Martini in the year 1916 Of all her rights and IN
under the will Of her brother. T. b. Martin, the
Of 81 900 sterling set aside, the pnhases
decreed t. ply the plaintiff Inc of q 800 and odd
doar~w Intea, from lnd an account ordered Of
any further pr.a made IN them such purchase The
court beow alsl declared that e estate Of Mrs Gather
inc Mackay Vas Liable fl ~ deficiency in such money
profit which couId not be Recovered from the puTchas-
es and ordered accuun's to he settled Of the adminra
ton Of Dr. Mackar Mrs Markay apd Frederick w.
Mackay upon the rs of Thomas b. Martin; and also
other incidental accounts.
From this decree the representative Of Mr.. Tucker
and L. j. Smith appealed. The argument, which. as
has been before stated occupied - days was concluded
on Thursday week
The DECISION made on Saturday, we hear was fol-
lows:
Judge 4lcn pronounced ne opinion of the majority Of
the cour (Judgr fy and IGgerr0 cOncurng with hIm)
The following effect:
Tile decree of the Court below 50 far it annulled
ana set aside the Vt purchase n 6and drcar
"a the purchasers tablet u'ly FIR he whole amount Of
Tie estate Of H. Is. Martin. received BY them under the
the said purchase, WIS affirmed.
4 That tie money in the chest (beng the said
sum OF s2S 500 part of the estate Of hOmas Is.
Martin: and having been receIvedb by the purchasers II
the contract been as.r h"y would have been
accountable ia Aat amount, as much OF the purchase
money unpaid-nasmach that fund was excepted out
The contract Of purchase and cund not have been made
Of valid payment Of The purchase money, even
although the purchasers may have known 1t was the
money which TO excepted.
8. But, as The Court OF opinion. to set aside the
contract the purchasers could only be charged with this
iron chest fund in tie for any other part
I'M If ed
y be made accountable FIR the amount u profits re-
ceved bv them. from the purchase, over and above the
amount paid oy Them TO Miss Martin, in 1910.
A. That, therefore, although Ii was probable hey had
receive such profits aIUunL larger than the Iron
chest fund, premature to have made decree for
that sum- until account had been taken TO ascertain
the such profits and consequently thai The de-
should for that reaSun and 10 mat extent, BE- Tever-
sci with costs, ana The case remanded ior suc an ac-
The opinion Of the majority Of The Court simply
decree and did 90 lhe grounds upon which the
Court decided the contract OF 1910 10 he Invalid; whe'-
e on of constructive legal or OF actual traud
Judge Johnson dssenlrd from The opinion q me maJori-
n of lie Court Oh the ground he said that while he
would have had lille officially setting aside the con
tract as fraudulent hut for tlceS Il the resduay ega
tees of Miss Martin, aT they informed Of iit lead
inc facts on which lie impeached; yet, that
in consequence such ches aud after such lapse OF time,
he was Of opinion hat the pianiff u-ht not To be reev-
ed and therefore OF opinion T. reverse the decree ana
dismiss he bill, but wi At c,sts.
Judge Cabeu Pre-Ien) also di~sened from The op-
ion Ut The maJoynn we ground ,thai he thought mere
was proof actual fraud procuring The
that the purchasers did stand such confidential
relaiontu Miss Martin The Zine Of the purchase, as
Imposed Oh tn III te burden Of proving that the purchase
was fair or that Miss Martin had full nrmallon Of the
amount and condition Of the ese,a the time Of The ur-
case-And that especially after great lapse OF time,
lie thought would cruel and ujusi to affect the ur
cnasers with the mpuatlOn OF i"PeI fraud lie was ot
opinion The Bill! ought to be dismissed with cuss.
We have thought II proper thus slacinciy, to state
the result of which, IN consequence Of the ability
and dlsIicon of tie counsel the large ia cuntrl-
versy and still the personal interest aud feeling
winch i. has eAciitd las tacel 81 mucn pubic at.
. telillun n his community aad esewher in the Safe.
81 much Of HE decree Ut court teuw as affected
the liability Of Mrs. Machays I'd Dr. Macka, : estate.
tie court OF opinion be,Ie it Tor ad uiraon
This appeal and tie retr4iutd liol expressing
any uf. ai.n Up IN it La3,Isr.