Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-01-22
PAY OF A MORTGAGE.
OPINION IN COURT OF APPEALS
YESTERDAY FAvORs q. Il. FISHER
CASE INVOLVING A WIDOWS DOVER.
Unique Suit for n Fertilizer BIZ
Against n Trustee-Thc Termih"-
t,on of the Trust Puts IL In "a Pecu-
liar Light.

Only three cases were decided In the
Supreme Court OF Appeals yesterday.
Probably the Most important oil these
was that Of Fisher against WHITE
and others. from The Circuit court
of the city of Richmond. ms
was an appeal from decree rendered
in n suit brought to foreclose mort
gage. The mortgagers sold the land In
question to Motherhood and Barry
who assumed payment of the mortgage
They took in II. +. Smith as partner
and went into the granite-quarrylhs
business in 1889 Two years later smith
instituted suit to settle up the busi-
ness; commissioners were appointed 10
make a sale of the real ana personal
estate of the firm. Prior to TINS time
the partnership had contracted 10 sen
a portion of the mortgaged lahd 10 'ohn
c. Robertson, who was to pay Sl'cVV
i'm cash for it, and assume the payment
NJ the mortgage This sale was APP
nroved and the commissioners executed
a deed TO Robertson for the lana sofa
him. Robertson claimed that IN indhi's
this purchase he was acting as the
agent of George f.. Fisher the appellant.
The whole effec. of the decision is
IN remand tho case to the lower court,
I'm order to establish the habiilly vi
Fisher. Ii appears that Fisher repudiateu
the part Of the contract, whereby ne
was TO assume payment Oh 'ne oiu
mortgage.
SHOULD ASK FOR THAT RELIEF.
Judge Buchanan, in his opinion, rem
dered yesterday says: in ordtr 10 Oh
tain such relief (as was prayed toiJ
would seem. certainly it would pe pet
ter practice. that the conpialhant
sbould pray for it in his bill. But even
under the liberal rules Of equity plead
ms If the allegations and prayer OF
the bill were sufficient TO authorize the
court TO decree that Fisher had De
come the purchaser OF the lana through
Robertson. as his agent, and had bound
himself to pay the mortgage, the PROOF
upon that question is wholly unsauslac-
torv The admissions and state
ments in the answers of MS CO.
defendant. Robertson, were NOT as
appellees contend, evidence against hln'
No rule IL better settled than thal the
answer of one defendant cannot De
read as evidence by the plaii'lh
is no Joint interest. privity, fraud, col
lusiop or combination between the CO.
defendants. There is nothing IN TINS
case which brings the answers or the
defendant. within any Of the exceptions
TO the general rule. Neither are the
admissions or statement of an alleged
agent that he was the agent OF announcer
evidence Of that agency, but that 1act
must be proved by other evidence. II
II is desired to establish it by the agent
himself. he must be called as a witness.
''The only evidence, therefore, IN the
cause upon which the court could have
based its decree that Fisher had as
sumed TO pay the mortgage were the
admissions in his answer. They do
not. we think. justify the conclusion.
The decree must, therefore, be re-
versed." The case is then sent back
TO the City Circuit Court. where Judge
buchanan says: "It will then be the
duty of the plaintiff if he seeks to
hold the appellant liable personally, to
establish that liability, and if the de-
PENDANTS. or either of them, desire TO
establish such liability, they Will have
the right to file such proper pleadings as
they may be advised, and litigate that
question"
CASE INVOLVING A DOVER.
Another case of some interest decided
yesterday was that of Kathryn Fuller
against Conrad's Administrator. etc,
from the Corporation Court of the city
of Danville This is a suit in chancery
for the assignment of dover THE es-
tate i'm which the appellant is entitled TO
dover is valued at 1919" the opinion
OF Judge Harrison goes on 10 say. "and
consists almost entirely OF highly-im-
n In,
fee-simple value is assigned 10 the widow,
in which assignment is included the only
property without power to produce in
come belonging to the estate. valued at
81. go; thus imposing upon the widow a
burden in taxes without the benefit OF
anv income from more than one fourth
of the property assigned her; while all
of the Si6.500 worth of property reserved
TO the heirs has income-producing ca
pacity."
The Supreme Court holds that while the
lower court IS justly entitled TO a large
discretion i'm the matter of assigning
dover. its judgment is not conclusive,
but subject 10 review, like other judg-
ments: and that the object of dover is
10 afford the widow a sure and competent
support; that It should be so assigned
that she may enjoy one third of the in
bable rents and profits being the chief
subject of consideration.
The cause is, therefore. remanded for
further proceedings TO be had.
NOT LIABLE FOR THE FERTILIZERS
The case of Woodbridge, Travers & Co.
against Green and others the opinion
i'm which was handed down in the Court
of Appeals yesterday, is rather unique
81 h.. -.
cult Court Of Halifax county is affirmed.
This suit was originally brought in
the above-named court to recover a sum
of money. evidenced by note, given by
William T.. Green. trustee for fertilizers
purchased by him Green was trustee
under the will of William b. Green. In
the suit the proceedings were such that
a decree was rendered directing the
debt to be paid out of the corpus Of the
personal property so held i'm trust. An
appeal was taken, and the Court of APP
peals held that the decree of the Circuit
Court of Halifax was erroneous in ap-
propriating the capital of the trust es-
tate to satisfy the debt in question but
that it should be paid from the income
of the estate.
The case went back to the Circuit
| Court. and that tribunal was asked to
rent out the real estate and appropriate
| the rents and profits TO the payment OF
the debt. In the mean time the trustee
died, and the trust terminated and the
property went TO the heirs The deci-
| sion of both the lower and higher courts
is that the debt could not be laid upon
| the heirs
OTHER SUPREME-COURT CASES.
Russell-Creek Coal Company VS.. Wells.
| etc From the Circuit Court Of Wise
county. Writ of error and supersedeas.
Bond S2.50o.
John T. and George T.. Anderson vs..
! Creston Land Company. Appeal and su