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Heckscher, who owned by far the largest Interest in the property, upon learning of that transaction, filed a bill in the chancery court of the city of Richmond on behalf of himself and other members of the syndicate against Blanton, to require him to account for and refund to complainant his proportion of the $5,000 which he had received.

The bill charges a secret arrangement between Blanton and the selling agents by which the latter were to charge 10 per cent. commission for their services, and to divide the same with Blanton. Blanton, in his answer, admits the receipt of half the commission, but denies that before the sale there was any agreement or understanding whatsoever between himself and the agents for any part of their compensation. His statement in that connection is that some months after the contract of sale had been executed the real estate agents voluntarily presented him with half their commission in recognition of the services rendered by him in effecting the sale.

Pending the preparation of the cause for trial, G. Norris Shuman, another member of the syndicate, made affidavit that the $5,000 in controversy belonged to the syndicate; and also that since the institution of the suit Blanton had disposed. of his real estate for the purpose of defeating any recovery that might be had against him.

In a counter affidavit Blanton repeats the allegations of his answer in respect to his right to retain the $5,000. He admits the sale of his real estate, but insists that it was made in good faith for the purpose of paying debts; and he denies that he is insolvent.

The cause was heard upon the pleadings and affidavits, and a decree was entered directing Blanton within 10 days to deposit $5,000, with interest, in bank, to the credit of the court in the cause. The decree further provides that, if Blanton should so elect, he might, in lieu thereof, enter into bond, with security, in the penalty of $6,000, conditioned to pay and satisfy any decree which might be thereafter made against him. From that decree this appeal was allowed.

The general rule of chancery practice as to the payment of money into court is that, where a fiduciary admits in his answer or on his examination, or where it appears on a master's report, unexcepted to, that he has in hand money belonging to the trust estate, such money may be ordered to be paid into court upon interlocutory application.

The cases of Farmer v. Yates, 23 Grat. 145, and Davis v. Chapman, 83 Va. 67-74, 1 S. E. 472, 5 Am. St. Rep. 251, are illustrative of that practice, and are in accord with modern English precedents (see, also, Wills' Adm'r v. Dunn's Adm'r, 5 Grat. 384; 2 Lomax, Ex'rs [2d Ed.] 769), although a contrary rule seems to have obtained formerly in this state. Thus, in Campbell v. Braxton, 4 Hen. & M. 446 (decided in the year 1809), it was held that, where a report of a commissioner shows

a balance due from an executor, it is not a sufficient ground for an order directing the money to be brought into court. But the plaintiff should be required to proceed to a decree, and enforce it in the usual way. But, as remarked, the doctrine laid down in that case is not in accord with the present practice.

The doctrine is thus stated by Mr. Daniell: "The plaintiff will not be allowed to make use of affidavits to supply any defect in the answer: the rule of the court being that the order shall be made upon the defendant's admissions alone." 2 Daniell, Ch. Pl. & Prac. (5th Ed.) 1781.

It is apparent, therefore, from the foregoing authorities, that the rule has no application where the defendant denies liability. In such case the question of liability must be determined before an order will be made requiring a deposit of the fund. The princi ple that a litigant will not be compelled to pay that which he disclaims owing until his responsibility has been adjudicated lies at the very foundation of the administration of justice. A contrary practice would, in many instances, entail hardship and ruin upon suitors, the question of whose liability might be eventually determined in their favor.

The attachment statutes afford adequate remedies against debtors who undertake to escape liability by converting or disposing of their property in advance of judgment or decree, and at the same time safeguard the rights of the defendant. But, if no such remedies were provided by statute, the practice resorted to in this cause would not receive the sanction of this court. The court is not to be understood, however, as intimating any opinion as to the ultimate merits of the controversy. The scope of the decision is to deny the power of the trial court to require the fund in litigation to be paid into court until after the defendant's liability therefor has been ascertained and determined in the usual manner, but it extends no farther.

It follows from these views that the decree complained of is erroneous, and it must be reversed and annulled.

(100 Va. 781)

HANEY et al. v. BREEDEN et al. (Supreme Court of Appeals of Virginia. Dec. 11, 1902.)

EJECTMENT-DEFENSES-EQUITABLE ESTOPPEL-QUESTION FOR JURY

INSTRUCTIONS.

1. A mere equitable estoppel is no defense to an action of ejectment.

2. In an action for ejectment, whether or not plaintiffs took possession of the land in dispute by mistake, or without the intention of claiming title thereto, is a question for the jury.

3. An instruction calling special attention to part only of the evidence, and the fact it tends to prove, and disregarding other relevant evidence, is erroneous.

1. See Ejectment, vol. 17, Cent. Dig. § 114.

Error to circuit court, Greene county. Action by James A. Haney and others against one Breeden and others. Judgment for defendants, and plaintiff James A. Haney brings error. Reversed.

C. F. McMullan and John S. Chapman, for plaintiff in error. John E. Roller, for defendants in error.

HARRISON, J. The tract of land sought to be recovered in this action of ejectment lies on the Blue Ridge Mountain, in Greene county, and contains 21% acres. The plaintiff in error claims that the land in controversy is embraced within the boundaries of a deed to himself and his brother Nicholas H. Haney, the father of his coplaintiffs in the court below, from Armistead Long and wife, dated November 29, 1849, and that they have been in continuous adverse possession of the same under said deed from its date until dispossessed by the defendants in April, 1901.

Upon the trial the defendants sought to maintain the issue on their part by the evidence of Wesley Knight, under whom they claim, who testified that he, after buying the land, and before paying for it, had a conversation with the plaintiff in error, and asked him if he (James A. Haney) clained any part of the land which he (Knight) had bought from Col. Hill. commissioner, and that, if he did, he should come down with him and see Col Hill about it, and that the plaintiff in error said, "I don't suppose you want to claim any further than my fence, or want to claim the strip in my field;" that he (Knight) replied that he did not claim that strip, and that the plaintif in error then said, "All right. If that is the case, go on and pay for the land;" that he (Knight) did go on and pay for the land, and got a deed therefor. The plaintiffs moved the court to exclude this evidence, which motion was overruled, and this action of the court is made the subject of the first bill of exception.

The object of the defendants in offering this evidence was to make out a case of equitable estoppel, and upon that ground to defeat a recovery by the plaintiffs. It is well settled in this state that such a defense is not permissible in an action of ejectment.

In Suttle v. Railroad Co., 76 Va. 284,-a case in which the plaintiff sought to establish an equitable estoppel, and upon that to recover, in an action of ejectment,-this court held that evidence very similar to that offered in this case was properly excluded; that an action of ejectment could be neither maintained nor defended by reliance upon a mere equitable estoppel.

In the case of Jennings v. Gravely, 92 Va. 377, 23 S. E. 763,-a case in which the defendants in an action of ejectment sought to prevail by relying upon an equitable title,Judge Keith, speaking for this court, held that the plaintiffs having shown that they

were the holders of the legal title, and had a right of possession under it at the time of the commencement of the action, the defendants could not defeat such right by showing an equitable title in themselves.

These two cases show conclusively that it was error to overrule the plaintiffs' motion to exclude the evidence under consideration. In the case of Jennings v. Gravely, supra, the authorities have been so recently reviewed, and the subject so fully discussed, that it would be unprofitable to repeat here what is there said. The reasons can be read there for the conclusion reached here. A contrary doctrine to that laid down in the cases cited would make the right to land rest upon the slippery memory of man, rather than written muniments of title.

The evidence tending to make out a case of equitable estoppel being inadmissible, it was error to give instruction No. 4, set out in bill of exception No. 3, in which the jury are told that, if they believed said evidence, they must find for the defendants.

We are further of opinion that it was error to give instruction No. 3, set out in bill of exception No. 2, which is as follows:

"If the jury believe from the evidence that the defendant's title papers embrace a small strip of land within the plaintiff's fence, of about the width of two corn rows, and containing the fraction of an acre, and that said fence is near the line between the plaintiff's home place and the land in controversy, and that a road runs along said fence on the lands in controversy, and that from the location of said fence in its relation to the boundary line, the road, and the other features of said land at that point, that the true owner of the land would reasonably have supposed that it was put there by mistake, or that the fence was so near the true line that he would hardly have observed that it was located on his land, then, in either aspect, the possession of said strip of land is not such an open and notorious possession as to give to the plaintiff title by adverse possession of all the lands embraced in the deed from Long to Haney, and you should find for the defendant."

This instruction sets out certain facts relied on by the defendants, tending to show that the plaintiff's took possession of the land in controversy by mistake, and without the intention of holding it adversely, ignoring the countervailing evidence of the plaintiffs relevant to that issue, and tells the jury that, if they believe those facts, the possession of the plaintiffs is not such an open and notorious possession as to give to them title by adverse possession of all the lands embraced in the deed from Long to Haney, and that they must find for the defendants. It is true, adverse possession depends upon the intention with which the possession is taken and held; and, while the intention to claim title must be manifest, it need not be expressed. But whether or not the plaintiffs took possession

by mistake, or without the intention of claiming title, is a question for the jury; and it was error to submit that question to the jury upon certain facts and circumstances relied on by the defendants, ignoring the countervailing evidence relevant to the issue relied on by the plaintiffs.

This court has repeatedly held that an instruction must not call special attention to part only of the evidence, and the fact it tends to prove, and disregard other evidence relevant to the matter in issue. Railroad Co. v. Joyner's Adm'r, 92 Va. 354, 23 S. E. 773; Hansbrough v. Neal, 94 Va. 722, 27 S. E. 593; Montgomery's Case, 98 Va. 852, 37 S. E. 1; and Boush v. Deposit Co. (decided at the present term of the court) 42 S. E. 877.

For these reasons, the judgment complained of must be reversed, the verdict set aside, and the cause remanded for a new trial to be had, not in conflict with the views expressed in this opinion.

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2. A motion for continuance being addressed to the discretion of the court, its refusal will not be reviewed unless abuse of discretion is shown.

3. An instruction is erroneous where there is no evidence to support it.

4. An action will not lie to rescind a contract for misrepresentation unless the misrepresentation alleged is set out in the pleading, and is as to a material fact, and fraudulently made, with intent to deceive.

5. A partner has no right to claim compensation for his services on behalf of the partnership without a special agreement.

Error to circuit court, Floyd county. Action by James M. Boyd against Winfield Scott and Samuel Scott. Verdict for plaintiff, and defendant Winfield Scott brings error. Affirmed.

Scott & Staples, for plaintiff in error. A. Phlegar, for defendant in error.

A.

WHITTLE, J. This litigation grows out of a sale by the defendant in error, James M. Boyd, of his interest in the partnership of James M. Boyd & Co. to his copartners, Winfield Scott, the plaintiff in error, and Samuel Scott. The price agreed to be paid for Boyd's interest was $4,000, for which the Scotts executed two bonds, and made two promissory notes, each for the sum of $1,000. Default having been made in the payment of these demands, Boyd instituted an action of debt upon them, to which action the defendants interposed a number of defenses by a special plea of set-off, under section 3299

1 See Continuance, vol. 10, Cent. Dig. § 72.

of the Code. There was a verdict for the plaintiff for the full amount of his claims, which the trial court approved, and rendered Judgment thereon for the plaintiff.

A trial of the action was delayed for several years, chiefly by continuances granted on behalf of the defendant Winfield Scott, his codefendant, Samuel Scott, having died pending the litigation.

Finally, at September term, 1901, the case was called for trial, whereupon the defendant again moved for a continuance on the ground of the absence of a material witness; his testimony in that connection being that he had caused a subpoena to issue for the witness, which had not been served, in consequence of his temporary absence from the state; that he expected to prove by him that, before the execution of the bonds and making of the notes in question, witness heard the plaintiff, Boyd, admit the existence of an agreement to the effect that the firm of J. M. Boyd & Co. was to pay the defendant Scott a salary of $100 per month for his services as superintendent of the Scott Spoke & Handle Company; that the evidence was material to his defense; that it would be denied by Boyd; and that the defendant had no witness, other than himself, by whom he could establish the contract.

Upon that representation the case was again continued for the defendant. But afterwards, the court having been advised by Scott's counsel that there was a witness in attendance who would testify in respect to the matter which the defendant expected to prove by the absent witness, the order of continuance was set aside, and the defendant ruled into trial. To that action of the court the defendant excepted. It also ap pears that at the trial the defendant “introduced the evidence of himself and D. L. Weeks, tending to prove that there was an express contract that he should be paid one hundred dollars a month by the firm for his services as superintendent of the spoke and handle factory, and that he had served in that capacity for thirty-three months." It thus appears that the evidence of the witness was merely cumulative, and the general rule of practice is well settled that the absence of such a witness affords no ground for a continuance. Railroad Co. v. Shott, 92 Va. 35, 22 S. E. 811.

A motion for a continuance is always addressed to the sound discretion of the trial court, under all the circumstances of the case, and an appellate court will never re verse its judgment in the exercise of that discretion, unless plainly erroneous.

Payne

v. Zell, 98 Va. 294, 36 S. E. 279; Kelly v. Manufacturing Co., 98 Va. 405, 36 S. E. 511, 81 Am. St. Rep. 736; Kinzie v. Riely's Ex'r (decided at the present term) 42 S. E. 872. In this instance the action of the court in setting aside the order of continuance and disposing of the case was manifestly right.

The second assignment of error is to the

refusal of the court to give instruction No. 3 as asked for by the defendant, and in giving the same in modified form. The instruction, as originally offered, told the jury that if they believed from the evidence that, at the time of or before the execution and delivery of the evidences of debt in the declaration mentioned, the plaintiff promised, represented, stated, or agreed that he would retire from business, and would not for a period of 10 years from the date of said evidences of debt, in the town of Floyd, engage in or be interested in such business as the firm of J. M. Boyd & Co. had theretofore conducted, or such mercantile business as S. & W. Scott should during said period see fit to conduct at the place of business of said firm of J. M. Boyd & Co., and if they further believed from the evidence that such promise, representation, statement, or agreement constituted one of the inducements for the execution and delivery to the plaintiff of said evidences of debt, and was made by the plaintiff with the intention that it. should be relied upon by S. & W. Scott, then he (the plaintiff) was bound by such representation, promise, statement, or agreement. And if the jury should further believe from the evidence that the Scotts continued the business of the firm of J. M. Boyd & Co., at its former place of business, and within 10 years from the date named, and while the Scotts were so engaged in business, the plaintiff engaged in or became interested in business of like character as that conducted by the firm of J. M. Boyd & Co., and thereafter continued by the Scotts in the town of Floyd, he is liable in damages to the defendant Scott.

The portion of the plea pertinent to this Instruction is as follow: "And the said plaintiff undertook and agreed and faithfully promised the said defendant that he, the said plaintiff, would retire from business, and would not again, for a period of ten years from that date, enter into business of such character as said firms or mercantile firm had been conducting at Floyd C. H., Va., or have any interest in said business, under a penalty for a breach of said agreement of $5,000, to be paid to said defendant by said plaintiff."

in the form in which it was offered by the defendant, but so modified it as to make it accord with the theory of the defendant, that the contract upon which he relied was in writing, and told the jury that if they believed from the evidence that there was an agreement in writing, as testified by the defendant, he (the defendant) would be entitled to damages for its breach, but not otherwise. The same principle was enunciated in instruction No. 2 given on the motion of the plaintiff.

There was no error in the ruling of the court in thus conforming the instructions to the evidence of the defendant. His contention was that the contract was in writing. He cannot complain, therefore, that the instructions limited the inquiry to his own theory of the evidence.

If there was not a written contract, there being no evidence of the existence of a parol contract, there was nothing upon which to have based any other instruction, and a court should never give an instruction in the absence of evidence to support it.

It was argued with much earnestness that a parol agreement to abstain from engaging in a particular business at a particular place for 10 years is not within the statute of frauds.

A determination of the matter under consideration does not call for a decision of that question, and upon it no opinion is expressed.

But inasmuch as the modification of instruction No. 3, and the giving of plaintiff's instruction No. 2, were proper, for the reasons given, the error, if error there was, in the view of the trial court that the case came within the statute of frauds, is harmless. Leftwich v. City of Richmond (Va.) 40 S. E. 651.

The court would have been justified in refusing to give instruction No. 3, in the form asked, on the further ground that it told the jury that the plaintiff would be liable in damages for engaging, during the period named, "in such mercantile business as the Scotts should see fit to conduct at the place of business of the firm of J. M. Boyd & Co.,❞—a stipulation neither embraced by the defendant's pleading nor proof.

Nor was there any error in the refusal of the court to submit to the jury the question of statements and representations of the plaintiff as inducements to the contract of sale.

The

It will be observed that the plea avers that the alleged agreement was an express contract, which the defendant in his evidence maintained was in writing, and there was no evidence tending to prove a parol contract. While the plaintiff admitted that, pending negotiations for the sale of his interest in the partnership of J. M. Boyd & Co. to the Scotts, he stated that he was in poor| health, and did not expect to resume the mercantile business at Floyd C. H., and knew that such statement was one of the inducements to the trade, he denied that there was any agreement to that effect. | pleadings, and could not be relied on at the

Upon this state of the pleading and evidence, the trial court refused to give the instruction

There was neither issue nor evidence upon which to have based that instruction. statement of the plaintiff that his health was bad, and that he did not expect to resume the mercantile business in the town of Floyd, and that he knew that such statement was one of the inducements to the trade, if otherwise available, was not put in issue by the

trial.

It is well settled that in order to entitle a

party to relief from liability on a contract by reason of statements or representations made by the other party to the contract, either by way of rescission or in damages for its breach, the matter relied on must be within the pleadings, and the statement or representation must either have been of a material, existing fact, or contradistinguished from a mere opinion or expectation or declaration of intention, or must be alleged and proved to have been made fraudulently, with intent to deceive or mislead. Watkins V. Land Co., 92 Va. 10, 11, 22 S. E. 554; Improvement Co. v. Brady, 92 Va. 71, 22 S. E. 845.

The remaining objection, insisted upon in the argument before this court, was to the giving of plaintiff's instruction No. 3.

That instruction is as follows: "The jury are instructed that one partner is not entitled to receive compensation for services which he may render about the partnership business, other than his share of the profits, unless there was an express contract between him and the other partners that he should do so, and the burden is on the defendant in this case to show by a preponderance of evidence that there was such an agreement."

The instruction clearly and correctly propounds the law governing the right of a partner to claim compensation for services rendered on behalf of the firm. The doctrine is that, in the absence of a special agreement to that effect, no such right exists. v. Forrer's Ex'rs, 29 Grat. 134; Frazier v. Frazier, 77 Va. 792.

Forrer

Upon the whole case, there is no error in the judgment complained of, and it must be affirmed.

(101 Va. 17)

MCALLISTER v. HARMAN et al. (Supreme Court of Appeals of Virginia. Dec. 11. 1902.)

JUDICIAL SALE-SPECIFIC PERFORMANCE

TITLE-ADVERSE POSSESSION-EXTEND-
ING TIME-RETAINING SUIT.

1. Suit was brought by M., administrator and trustee of R., to partition lands between C. and the heirs of R., and to sell the part assigned to R.'s heirs. Before confirmation of the report of the commissioners to partition the land, C. and M. (the latter, trustee under a deed by R. of his interest) gave an option on the land to H. After confirmation of the report partitioning the land, H. elected to purchase, and the sale was reported to the court by M., trustee; and it entered a decree approving and confirming it, and directing (C. consenting) that the purchase price be paid to the general receiver of the court, but referring to it as a sale made by M., trustee, and C. in his own right. Held, that the sale was not a judicial sale, which is one made by a court in a pending cause, through its authorized agent.

2. There being no stipulation in a contract of sale of land by M., trustee of an undivided half of it, and C., owner of the other half, that they were not bound to make a good title, the purchasers, even if they have no right to demand

from M. any better title than he held as trustee, have a right to a good title to C.'s moiety, and such title to the other moiety as M., trus tee, could convey.

3. A contract of sale of land will not be specifically enforced; the vendors' title depending on a junior grant, with adverse possession, and they not having shown such possession.

4. Vendors seeking specific performance of a sale of land- their title depending on a junior grant, and adverse possession-will not be granted more time to show adverse possession; they having had eight years after objection to the title, during which the land has been diminishing in value.

5. A suit for specific performance of a sale of land will be retained for an accounting and a decree thereon,-the purchaser having paid part of the purchase money,-though the title is not such that specific performance can be decreed.

Appeal from circuit court, Bath county.

Suit by McAllister, trustee, for partition and sale. From a decree refusing to specifically enforce a contract of sale against Harman and another, McAllister appeals. Affirmed.

W. M. & J. T. McAllister and Benj. Haden, for appellant. R. L. Parrish & Son and A. C. Braxton, for appellees.

BUCHANAN, J. This suit was brought to the April rules, 1890, by William M. McAllister, administrator and trustee of Robert J. Glendy, deceased, and others, to settle the accounts of the said administrator and trustee, to ascertain the debts of the said decedent and their priorities; to partition the "Wilderness" lands between Charles D. Glendy and the heirs of Robert J. Glendy; to sell the lands assigned to the latter, and out of the proceeds to pay the decedent's debts, and distribute the residue, if any, among those entitled. The bill also contained a prayer for general relief. At the June term, 1890, commissioners were appointed to make partition of the land known as the "Wilderness Estate." The commissioners made partition thereof, and reported their action to the court, which was confirmed at the September term, 1890, of the court, and ordered to be certified to the county court of Bath county for recordation as provided by statute. On the 6th day of September, 1890, after the commissioners had been appointed to partition the lands, but before the confirmation of their report, William M. McAllister (trustee in a certain deed of trust executed by Robert J. Glendy) and Charles D. Glendy entered into an agreement with Harman & Berkeley by which they gave the latter an option upon the lands, running until the 1st day of January, 1891, at the price of $17,000; one half to be paid when the option was closed, and the other half 12 months after that date, with interest. agreement further provided that, in the event the option was closed, one half of the purchase price of the lands was to be paid to such person or persons as the circuit court of Bath county might direct in the pending suit of Robert J. Glendy's administrator against Robert J. Glendy's heirs, and the oth

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