Hooe v. Marquess

4 Va. 416

• Court: Court of Appeals of Virginia
• Decided: October 15, 1798
• Status: Published

Opinion

PBNDLiETON, President,

delivered the resolution of the court as follows:

The frauds charged in the bill would, if proved, be a foundation for application to a court of equity: and this dispenses with the necessity of considering the general questions of jurisdiction under the act of assembly. An important one indeed, and reserved until its decision shall be necessary.

Proceeding' to the merits, we observe that the chancellor has omitted to decide the first question of contest between the parties, namely, that relative to the suggestions in the bill of the substitution of the deed; which we think ought to have been determined: and, as the testimony is conflicting and unsatisfactory, that an issue ought to have been directed to ascertain, whether there was such a substitution? And, if so, what were the terms of the original deed? before any further proceedings were had in the cause.

'*The decree therefore is reversed; and the following is to be the entry: “The court is of opinion, that the suggestions of the bill being that the deed from Charles Grigsby to Mott Grigsby, now remaining in the clerk’s office of King George county court, is not the true deed executed between the parties, but was fraudulently substituted for the true one, which contained no clause of forfeiture upon the sale of the property; and this not being confessed by the answers, was the first subject of contest between the parties, to which the testimony of several witnesses relates, and yet it is not decided upon either way, by the decree of the said high court of chancery, unless by implication, passing to the decision of consequent points in the cause; and, in this, there is error in the said decree, therefore it is decreed and ordered, that the same be reversed and annulled, and that the appellee pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here: And this court, proceeding to give such decree as the said high court of chancery should have pronounced, is of opinion, that, since the testimony as to the fraud charged, is conflicting and not satisfactory to the court to decide the question for either party, the fact ought to be determined by a jury, therefore it is further decreed and ordered, that an issue be made up in the said high court of chancery, and tried as usual by a jury, whether the writing now being in the clerk’s office of King George county court, as mentioned in the deposition of Caleb Smith, purporting to be a conveyance from Charles Grigsby to Mott Grigsby, be the deed of the said Charles, or not? And, if found in the negative, to try whether the said Charles made and executed any other deed to the said Mott for conveying the lands in question, and whether the conveyance was absolute, or subject to any, and what, condition? Which being tried and certified to the satisfaction of the said court, such consequent proceedings be had thereupon to a final decree, as to the said court shall seem proper, this court not having decided on any of the points in the former decree.”