Chancellor v. Ashby

2 Patton & Heath 26

Opinion

TYI/E5R, J.

The court is of opinion, that there is error in so much of the decree in this cause, pronounced on the 14th of May, 1838, as declares the land in controversy *to be an advancement, by Martha Ashby, ex’x of Samuel Ashby, pursuant to the provisions of the will of said Samuel — the said John H. Ashby being, in the opinion of this court, a trustee as to said land for the use of his mother for life, and after her death, for the use of himself and the other heirs or distributees of said Samuel Ashby. But as Nathaniel Grigsby was a purchaser of said land for valuable consideration, and without notice of the equity of the plaintiffs, the representative of John H. Ashby is liable to account for the rent, issues and profits of said land from the death of Martha Ashby, or from such time as said John H. Ashby commenced the occupation and enjoyment thereof, to time of the sale of the land to the said Nathaniel Grigsby; and is also liable to account for the price of the land sold to said Grigsby, with interest thereon.

The court is further of opinion, that the court below erred in overruling the exception taken by the plaintiffs to the commissioner’s report, to wit: that the statute of limitation was a bar to the recovery of compensation by the said John H. Ashby for more than five years, and that said exception should have been sustained; and that there was also error in the decree aforesaid, in directing the sum due the said John H. Ashby, for services rendered the said Martha Ashby, to be allowed as an abatement to the purchase money of said land, this court being of opinion that the amount of compensation due to said John H. Ashby was chargeable to the estate of Martha Ashb37. And as no exception was taken in the court below as to the quantum of compensation, that being a question liable to be affected by extraneous testimony, but only an exception as to the time the said John H. Ashby was entitled to claim such compensation, the court is of opinion that the said John H. Ashby should be allowed, against the estate of Martha Ashby, dec’d, the sum of $250 per annum, for a period of five years preceding the death of said Martha Ashby.

The decree here, was, that the several decrees complained *of in the record be reversed and annulled, and that the appellant recover, against the ap-pellee, his costs expended in the prosecution of his appeal, &c., and this cause is remanded to the Circuit Court of the county of Fauquier, to be proceeded in according to the principles herein set forth and declared.

JUDGE FIELD dissents from so much of the decree as allows the sum of $250 per annum, for five years, for services of John H. Ashby. The other judges concurred in the opinion of TYLER) J.