Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-03-15
COURT DECISIONS.
4 DlGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
ViRcINlAN- PILOT.
Notes Of Cases Recently Decided,
4 Which. are Of Interest TO
Our People.
caves VS.. VIAL.

Supreme Court of Appeals of Virginia
February is, 1900.
A DECREE IN PARTITION DOES
+ NOT DECIDE THE RIGHTS OF A
W THIRD PARTY CLAIMING a POR-
II TION OF A SHARE IN THE PRO
PERrY
WHEN TIID STATUTE OF FRAUD
MUST BE PLEADED. WHEN NOT.
WHAT A WAIVER OF THAT
p STATUTE AND OF THE RULE, AS
TO EXPLAINING "A WRITTEN
/. AGREEMENT BY PARoL EvI-
DENCE.
The points decided appear from the
opinion of the court
The first error assigned is that the
court erred in not Diminishing the bill
ulon demurrer, because it shows upon
Els Els lace that In the partition suit of
Eaves, &c.,v. Vial, &c. to which the
}appellee was party. the appellants
CLAIM to the property In controversy
MSS distinctly set forth, and 1t was
auJudGcu and decrecd therein that the
property had been acquired by her I'M
der the deed Of February 6, 1895, and
lhat the question raised was therefore
res judicata.
without passing upon the question
whether that defence could be made-
by demurrer, it is sufficient to say the
rights which the appellee Is now as
sertinG In this case were not-in issue
nor were they involved in that case.
whether the appellant was the alb
solute owner of the lands conveyed by
The deed of February 6. as she claims,
or she held them subject to the right
OF the appellee to have a reconveyance
when he demanded it. as he claims,
she was clearly entitled to have them
assigned to her in the partition pro-
ceedings. for at that time the appellee
had nrade no demand upon her for a
Teconveyance; there was no contro-
Versy between them, and no reason
Why the question raised in this case
should have been raised In that The
only effect OF the proceedings in that
case upon the rights of the appellee
wns to set apart the interest which he
now claims with that of the appellant
and to clothe her with such title and
rights In 1t as she had acquired from
him without any prejudice to any
agreement or any such there was) be-
tween them for n reconveyance.
I, The second assignment OF error is
that upon the merits the bill should
have been dismissed. as the case was
Clearly: with the appellant.
Inc agreement set UP in She bill, and
which 1t was decreed by the trial court
should have been specifically enforced
was not In writing and could only be
established by oral testimony, which
would seem to he In violation of the
Statute OF Frauds and also of the rule
that written instrument cannot be
varied by contemporaneous parol
agreemelSt.M
But neither the Statute of Frauds
nor the rule of law that the terms OF
Il written instrument cunnot be varied
by contemporaneous parol evidence
seems to have been relied on in the
trial court 1t is not necessary in Or
der TO set up the Statute of Frauds IS
q defence. that 1t should be specifically
" PLEADED unless the existence of the
agreement sued on is admitted by the
answer. or the bill in addition to the
general allegation that it was made
alleges such acts done in part perfor-
nance or such other equitable circum-
stances as would justify the court in
enforcing 1T
At law defendant may insist upon
the benefit of the statute by the gen
eral issue, or In equity by simply deny
Ing In his answer that any such agree
ment was ever made as that charged
in the bill. This general denial VIII
put the plaintiff to the proof of the
agreement, and If 1t be within the
Statute Of Frauds he must produce q
writing at the trial or hearing, unless
the defendant valves his right to re-
quire 1t by allowing the agreement to
be proved by oral testimony.
The answer of the appellant denied
the agreement set up In the bill, but
she made no objection to the oral tes-
timony offered by the appellee to prove
1t when the witnesses were examined,
nor was any exception afterwards
taken to their dispositions, nor any OBJ
lection made to that evidence in any
way, but both parties seem to have
proceeded with the case upon the as
sumption that parol evidence was adj
MISSILE ITO prove or disprove the
agreement, and the decree of the court
shows that the case was submitted for
decision upon the pleadings. exhibits,
and "the Testimony of witnesses on
either SIDE" and that the court based
Its decree upon the ground that the
claim of the plaintiff as set out in the
bill had been Established evidence"
The action OF the appellant in per-
uniting the case to be heard and de-
termined by the trial court upon the
oral testimony taken to prove the
agreement. without objection, must
we think. be regarded as n waiver of
the Statute of Frauds and OF the rule
OF law that contemporaneous oral evil
dence is not admissible 10 vary the
terms OF written agreement and the
case must be heard and determined by
this court upon the same evidence up-
on which 1t was heard and determined
In the trial court. Affirmed.
sEAyEY V. BENNETT.
Supreme Court of New Hampshire.
March 10, 1899.
THE MEASURE OF. DAMAGES ToR
NEGLIGENTLY POISONING A
HORSE. IS TIE EXPENSE OF
CARING FOR IT AND THE COST