Loop v. Summers

3 Va. 511

• Court: Supreme Court of Virginia
• Decided: October 28, 1825
• Status: Published

Opinion

Judge Coaltek,

delivered the opinion of the Court.

*

The Court is of opinion, that the report of the commissioners in the Chancery Court, referred to in the proceedings, and the decree thereupon, «lid not preclude the appellant, who was no party to that suit, from proving that he, and not Samuel Summers, paid the money to the commissioners; and consequently, that report and decree were no ground, in this case, for refusing the relief sought by the appellant.

The Court is also of opinion, that the Court had jurisdiction of the cause, so as to give that relief, and ought to have given it, except so far as the appellant, without the assent of the appellee, parted with the security which was in his hands, by paying the purchase money to Samuel Summers.

The Court is further of opinion, that the testimony on this subject, connected with the admission in the answer, that a portion of the deferred instalments were to be paid, is too strong to justify a decree against the appellant on that ground of defence; yet it is not considered so strong as to warrant a decree, without further enquiry, against the appellee. Nor is there sufficient evidence of the sum of money actually paid by the appellant; the receipt given by the commissioners, at the time of the transaction, importing that the payment was made by Whirley, for himself and the appellant; and being also expressed in such terms, as may be construed to mean, that it was so paid by Whir ley, on their joint account, he also having purchased P31’*' ^e Jand, subject to the claim of the legatees; in which case, the appellee would not be chargeable with the whole; this forms also a matter of further enquiry.

The decree is- therefore reversed, with costs, and the cause remanded for the necessary enquiries to be made, as to the matters aforesaid, and otherwise proceeded in, by bringing Samuel Summers, (who is jointly bound with the appellee, and who is entitled to his aid, as well in the defence, as in bearing the burthen of the decree,) before the Court, so as to fix his liability also to the appellee, who may eventually be entitled to a decree against him, preparatory to a final decree.

The l’liiiSiniiNT, absent.