The times. [volume] (Richmond, Va.) 1890-1903, 1900-02-18
RECENT RULINGS
OF IMPORTANCE
Decisions by the Court Of Appeals
Rendered Thursday.
CASES OF LOCAL INTEREST.
Statutes OF Fence Law. Doctrines Oh
Subrosation and Lachcs. Rights OF
Married Women. and Suit TO
Set Aside Decd

N
Appeals ended on Thursday iass "iien
The court adjourned 10 inset AGAIN on t!ie
9Th day Of March, next
on,nions were rendered in five cases,
several Of which were of local. ampor-
lance, and nearly all OF thein h'oiNeo
Questions of much interest both TO the
lawyer and 10 the layDlan
The case OF Eaves Us. Vial, when was
appealed from the Chancery Court OF the
CITY of Richmond, involves the determine
1lon of some delicate points as TO the ad-
7niSsioilty OF paroi evidence 10 tslaoltSn
tne agreement to reconvey properly winch
had previously been grantee 10y oeto "
gift.
In the case Of iirth VS.. Hirth, appealed
from the Law and Equity Court OF R!ch-
Inond the opinion sets forth the necessity
OF the possession OF a separate estate as
{. condition precedent to Il valid promise
of a contractual nature on the part OF l
married woman.
The case of Poindexter rs. May, APP
pealed from the Circuit Court OF Louisa
county, decides the status OF the law or
this State relating TO fences. and the eX-
tent 10 which relief may DE had for dam
age done by trespassinE stock.
In Male VS.. Parrish. appealed from
the Circuit Court Of CIlpcper county, the
court rendered an interesting decision.
which was an exhaustive review oil the
doctrine of subroCauon.
In the case of Covington Us. Grifiln's
Administrator. also appealed from the
Circuit Court of Culoecer county. the
opinion clearly defines the extent to
which court Of equity will so in review
ing an old claim. and also the limitations
which grow out of laches and unreasona-
IL on bp ri pf be oil ~, ant
SUIT TO AMEND A DEED.
Eaves VS.. Vial. Opinion by Judge John
A. Buchanan. Appealed from the
Chancery Court OF The city OF ;sich-
nond.
The bill in this case was Iiled by the
appellee. who alleged, among other
things. that his father, Z. p. Vial, died
in 1888. leaving certain real estate, which,
by his will. he directed should be held
by his widow until his youngest child
was twenty-onc years of age, when it
should be equally divided among his five
children: that in the year 1885, at the
instance OF one of the children (Mrs.
Shepherd) her interest in said real
tate assigned and conveyed to her
by virtue of proceedings instituted for
the purpose: that in the year 1855 the
widow died. and in the year 1897 the
residue Of the real estate was parutoned
in 4 suit between the parties entitled:
that in this suit the share Of the APP
pclee was assigned IL his sister. the APP
pellant, it appearing that she had ac-
quired the legal title thereto by deed
dated February G, 1896. Appellee alleged
thEt said deed was voluntary and with
out consideration, and was made by him
TO secure the property temporarily from
the temptation TO squander IL under
which he labored on account OF the wild
life he was at the time leading. and with
The distinct understanding that when so
requested she would reconvey the pro-
perry to him. which She now refused TO
do: he further alleged that he was ad-
vised that he was = tenant in common
with the appellant in the property as
signed 10 her in the partition suit, AND
prayed that the deed of February 6. 1886
dc set aside and partition OF the land
made.
TO this appellant filed demurrer and
answer The answer admitted all the
allegations except as TO the deed, but
denied that there was any agreement to
Ieconvey, or that he had any interest in
same.
Upon a hearing of the cause, the trial
court, being of opinion that the husband
OF the appellant, who had been made a
party defendant. was not a proper party,
either in his own right or as adm1nlSua-
tor of the testators estate, sustained the
demurrer IN that particular, and dis
missed the bill as to him; and being
further OF opinion that the evidence
showed that the deed or Fepruary y,
1896. was made with the understanding
and agreement that the appellant would
reconvcy the property to the appellee
when 20 requested, adjudged that he was
entitled to one-half interest in the real
estate assigned to her in the partition
suit and decrced that the appellant
should reconvey the same to hiin
The frs. error assigned by the appel
liant is that the court erred in not dis
missing the hill upon demurrer. because
j. shows on the face in the partition suit
OF Eayes rs Eavcs, TO which the appel
dee was party, the appellants claim to
the property in controversy was clearly
set forth, and il was adiudCed that the
,roperty had been acquired by her Under
the deed OF February 9th. 1896. and that
Inc question was res adjndicata.
This court holds that, without passing
upon the question whether that defence
could be made by demurrer. it is sufi:-
clent TO say that the rights which the
appellee is now asserting in This care
were not in issue, nor were they involved
in that case.
As TO the admission at the trial in the
lower court of parol evidence as to the
agreement 10 reconvey. the court holds
that the failure to raise the proper OBJ
iections at the time is construed to be
waiver of any rights under the statute
Of Frauds: and OF the rule OF law that
contemporaneous oral evidence Is not
permissible 10 vary the terms OF d writ,
ten instrument. and the case must be
heard and determined by this court upon
the same evidence upon which II was
heard and determined by the trial court.
In summing UP the evidence the court
said ''lf the respective contentious were
equally reasonable and probable. there
mighs be some question as to whether
the parol agreement set up by the APP
pellee had been satisfactorily proved. but
the contention Of the appellant that her
brother. a young man just beginning life.
had conveyed to her more Than $1,000
worth of property. practically stripping
himself Of everything he owned. without
considcra ton and without any under
standing or agreement for a reconveyance,
IS SO unrea sonabie and improbable, that
under the evidence in the case we are
satIst.ed that thc agreement for a recon-
vcyancc as SET up III the Dill. has been
satisfactorily proved, and That there is
40 error III the decree complained OF, and,
that It must DE affirmed.
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