The times. [volume] (Richmond, Va.) 1890-1903, 1897-07-04
SUPREME COURT CASES.
IMPORTANT DECISIONS HANDED
DOWN URsDAY.
Equitable Assignments of
Lands - Fraudulent Assignments-Ex.
cep,ion to Report-Parals ales of Land.

Hicks. trustee. VS.. Roanoke Brick Com
pany, &C. Reversed. opinion by Judge
Ridley.
Held: The amount in controversy as 20
one of the appelees being in excess OF
500. the Court has jurisdiction as to all
Of the appellees, though the amount de-
creed to each OF them be less than $500.
@ Appellant failing to perfect appeal
operates as an afiirmance of the DEGREES
in the lower court. Barksdale & Terry
VS. Fitzgerald, 76 Va, 500: Cobbs' AS
/ sgnee. VS.. Gilchrist so Va. SOB. Va. Code,
Sec $40
9. A mere promise to pay debt out
j of designated fund when received does
not give an equitable lien upon 1t or
| operate as an equitable assignment. To
constitute an equitable assignment, there
must be an assignment or transfer Of the
| fund. or some definite portion OF 1t. so
that the person owing the debt or holding
the fund can safely pay an order on 1t.
and IS compellable to do so. though for
| hidden by the drawer. Clayton VS.. Faw-
cett's Administrator. 2 Leigh. 10; Ed vs..
| Martin. 5 ID, 1872; Christmas VS.. Russell. IA
| Wall. 50: Trist VS.. Child. q ID, AL.
T. The petitioners who obtained judg-
ments and issued executions thereon ac-
quired a lien on the fund prior TO the
lien Of appellants. continuing so long as
the judgments could be enforced, though
not enforceable until the money was
payable. Code, Sec. 36O12 Charron &
Co. VS.. Boswell, &C.. IS Graft. PIG, Ire
williams Excrs. Us. Guerrants EIcrs,
81 ID. 525.
3. Mechanics lien laws do not apply 70
public works by States. cities and coun-
ties for public uses unless the statute
creating the lien expressly so provide
Supervisors VS.. Parks. &c. decided at
the March term 1897.
PARTITION OF LANDS.
Brooks. &c, VS.. Hubble, &C.. and Peery
vs.. Brooks. &c Remanded for further
inquiry. Opinion by Judge Rieley.
Held: Until the Code of 1857 was enact
ed. coparceners could make partition OF
lands by parals as well as by deed. Yet
where oral partition is relied on as defense
10 bill filed by one Of the parceners, or
his heirs for partition Of certain tract,
the burden Of proof is on those setting 1t
up to show clearly that such partition
was made: and it IS not sufficient 10 show
simply the fact that II was made, but
the burden is not lifted until 1t is shown
10 whom the several lots were assigned.
Until this is done there is only partial
and Intellectual compliance with the OBJ
legation arising from the burden Of proof.
and the defence cannot avail. at least
where one of the coparceners was
married woman, and IS bound by the par
tition only through the act OF her hus-
band
FRAUDULENT ASSIGNMENTS.
Spence VS. Repass. &c. Affirmed.
Opinion by Judge Harrison.
The main principles enunciated in this
case-busness transactions between
husband and wife-that the burden Of
clear and satisfactory proof by the wife
Of bona fdes is essential-were fully dis
cussed IN cases reported last week. 1t
was further
Held, l. Objection 10 competency OF a
witness (when known must be made be-
fore the examination in chief; at least,
it cannot be made after cross eXamina-
ton. Pillow VS. Southwest Imp. Co, %
Va. 1H
. TO warrant n court IN subiecting bet
terments put on the wifos land by hus-
band TO payment OF his debt 1t must be
clearly shown that they were put there
with her assent and approval, and with
intent on her part to defraud his credi-
tors Bishop on Married Women, Secs.
eos. Asa, 49, Az
8. The lien OF a ii. IA. not levied on
property capable Of being levied on
ceases after the return day Of the writ.
Code, Sec. 1851.
Williams &C. vs.. Reynalds &C. Affirm
ed. Opinion by Judge Harrison.
Appellants filed petition in a pending
case alleging purchase of lots at judicial
sale. payment therefor confirmation Of
sale. decree for deeds by commissioner.
and report by commissioner that he had
cd N q
had been made without legal authority,
and in fraud OF petitioners rights. TO
other parties than themselves. Proof
that deeds were in fact made 10 vendees
or petitioners at petitioners request
Decree for appolees affirmed.
EXCEPTIONS TO REPORT.
Jones sc. VS.. Byrne's Admir-. &C. Re
versed in part. opinion by Judge Card
well, Judge Buchanan dissenting.
Held. An exception to a commissioner
report which brings 10 the attention Of
the court facts appearing of record in the
Office Of its clerk which the commissioner
had failed TO report, which facts are very
essential 70 d proper adjudication Of the
case, involves the recommittal of the re-
port in order that enquiry and report be
made as 10 the alleged facts set out in
such exception.
Judge Buchanan. The exception is not
supported by any evidence in the record.
by affidavit. or otherwise. In the absence
OF any proof Of the existence OF appel
lants, claim or diligence on their part, the
court could not 10 otherwise than over
rule the exception and especially when
no motion was made 10 recommit.
PARAL SALEG OF LAND.
Helton. etc, We. johnson. etc. Affirmed.
Opinion by Judge Cardwell
AppcllcutS ailego paral contracts Nth
Johnson, Sr, their father-in-law and ia
ther, respectively. TO convey cerAlin lands.
He afterwards conveyed by deed these
lands 10 his son, =. l.. Johnson. in con-
sideration of natural love and affection
and $500 in cash. Allegation OF
fraud in the procurement Of the deed,
and prayer that IL be set aside. No proof
of fraud. and evidence to sustain the paral
contracts very far short OF that required
TO warrant enforcement of paral con-
tract for sale of land.
Held. The ground on which paral agree
ments for the sale Of land are enforced
are as follows
First. The agreement must be certain
and definite in its terms. Second The
acts proved in part performance must
refer 10, result from, and be made in pur-
suance of the agreement made. Third.
the agreement must have been so far
executed that refusal 10 full execu-
ton would operate a fraud upon the par
ties and place them in a situation which
does not lie in compensation. Wright vs..
Pickett, p Graft. 37i.
PLEADING
Smith VS.. Packard. trustee. Affirmed.
Opinion by Judge Cardwel
The appellee did certain work for ap-
pellant. When finished. the work was ac-
cepted. and the use OF IL was continued
till action was brought, assumpst for
amount due under the contract and extra
Ia 70 pf,