Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-07-11


land. and 80 received by the Comfno,'-
wealth. jury would be warranted III
,nferrine under the circumstances that
navment was made by, or for some one
having the right to redeem In the abb
sence OF anything to the contrary.
a The burden of proof was on the
plaintifr to show that the land for which
he sued was within the boundaries Of his
title papers, and not within the reserva-
tons therein contained; and not on tho
defendant to show that II was within the
reservations. Reusens VS.. Lawson, 81
Va. 22s, and for this error Judgment Is
reversed.
CHANCERY PLEADING.
RAIDER. &C., VS.. Bristol Land Company;
and Bishop, &C., VS.. same. Reversed.
Opinion by Rely, j.
Held: Where a large number OF per-
sons have been. by Identical representa-
lions, fraudulently induced to become
subscribers to company, they may
unite in one bill praying for the can
collation. of their subscriptions, and make
the company and its officers and agents
through whom the fraudulent representa-
lions were made. defendants. Brown VS..
Bedford City Land and Improvement COM
y. d.,
and Harrisonburg Land Company. SO Va.
49,
The fraud charged, the injury sus-
tanned. the means by which ii was ac-
complished, and the relief sought, are
Identical to all. Fraud is the gravamen.
All have a common interest centering in
this point All are alike affected by it.
The trial court erred In sustaining the
Jar,urrar IN tho hill ~, oaph ease
STATUTE OF FRAUDS.
Boyd. etc, VS.. Cleghorn, etc. Affirmed.
Opinion by Harrison, ].
Held: Although appellate court may
not concur in the reasons assigned by
trial court, yet II the decree appear to
be a proper one for other reasons, il will
be affirmed. Newell VS.. Wood, 1. NUM-.
s55.
This suit was to enforce specific per-
Torrance of two parol agreements for
the sale OF land, and the evidence is not
of the clear and convincing character
that Is necessary, consisting chiefly OF
alleged verbal declarations and admis-
sions made many years ago by person
now dead, which cannot now be con-
tradicted or explained, and the slightest
mistake or failure of recollection might
totally alter their effect
2. Equity will always lend It's aid to
defeat a fraud, notwithstanding the
Statute of Frauds, yet TO justify the
court in relaxing the operation OF the
statute, and compelling specific eXecu-
ton, clear and convicing proof is essen
tial Wright VS.. Pickett, p Graft. 80;
Pierce's heirs VS.. Catron's heirs, % Id,
5Ss; Hale VS.. Hale. 80 Va, 72S; Darling
VS.. Cumming. 90 Va, 52l.
Preston VS. Kindrck. Reversed. Opin-
ion by Buchanan, j.
The question involved is the right OF
a party TO go into equity for reflex
against a decree rendered in cause to
which he was made a party, on the
ground that no process was served on
him. the process appearing TO have been
executed by the return of the Sheriff
and by the recital in the decree, taking
the bill for confessed.
Held: The decisions are conflicting, and
the reasoning of the judges upon neither
side is entirely satisfactory. One line
of cases holds that party injured by
Judgment rendered i'm his absence may
have relief in equity If he can show he
was not summoned and did not hear of
the proceedings in time TO make defence,
or obtain a new trial, and that he has
meritorious defence. Freeman on
Judgts.. section 495.
Another line holds that equity cannot
grant relief unless the false return was
procured or induced by plaintiff, or he
can be connected with the deception,
and this is, perhaps, the better doctrine.
The risk of opening a judgment or
decree on an allegation, which, Ike that
of the failure to serve process, Or the
Is - r.
tain testimony Of witnesses, is so great
that the injured party should be left to
his remedy in the same case where
relief can be had in that case, or TO his q.
remedy against the officer who has made
the false return, unless that return was
procured or induced by the plaintiff, or he
Is i'm some way responsible foe he de-
PENDANTS want of notice OF the suit or
of the proceedings therein.
Such a Judgment is sustained, not be-
cause a judgment rendered without no
tjce is good. but because the law will not
hermit any proof to weigh against that
which the policy of the law treats as alb
solute verify, and RENTS the party In
iured TO his remedy at law, and against
the person by whom the record was falsl-
fed.
The presumption that the powers com
mitted to judicial tribunals have Deen
proper!y exercised Is essential to the re-
pose and safety of society, and the incon-
yenience Of allowing 1t to be met ana
overcome by parol evidence Is greater
than any benefit that could be derived
from a different source. Public sately
demands that when such tribunal mas
pronounced judgment, its adjudication on
that subject should be as conclusive on
~t,nfl he "a
duly notified as on any other point es-
sential TO the determination Of the cause.
1 Smiths Leading Cases, 1ll9-lZi, &c;
Goolsby VS.. ST. john 20 Graft. lio-I1o'
walker VS.. Robbins, II Howard, 0Si; Knox
County VS.. Harshman, 1873 L. D., l5Z.
In the case at bar the allegation OF
tho hill that plaintiff therein did not
have actual notice Of the suit ana pro-
ceedings until after the DEGREES COM
nIained of were rendered is wholly I'M
sustained by proof. .s ,,s
THE trial court did not exceed It's
irrisdictlon I'm rendering personal de-
cree against complainant, but only com
lifted an error, for which relief couid DC
had under Code, section SiA
VENDORS LIEN ASSIGNED.
Penn &c VS.. Hearon. Reversed. Opin-
TN, sole question is, Can an assignor
-, obose i'm action secured by vendors
lien reserved on real estate enforce the
lien in equity for the benefit OF his as
4eId. An assignee of vendors lien is
80, ossionee OF a mere chose in action,
and the assignment carries no interest
en- the land on which the debt is secured.
Gordon. Assignee, VS.. Rixey, 76 va e9i.
The assignor has merely barren iesai
title while the beneficial interest Is IN
his assignee, who must be party 10 ene
suit. II the real parties IN interest," are
S"'" no court no proper decree |