CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF APPEALS OF VIRGINIA. Commencing October, 1817. IN THE FORTY-FIRST YEAR OF THE COMMONWEALTH. Gosden and Wife against Tucker's Heirs. Decided Oct. 15th, 1817. between hus considera in a convey cel of her chase certain THE appellants exhibited their Bill in the Superior 1. A parol Court of Chancery for the Richmond District, (in 1807) agreement, setting forth, that the female plaintiff Mary was for- band and merly wife of Joel Tucker ancestor of the defendants; wife, that, in that she, being seized in fee in her own right of a parcel tion of her of land, called the Bowling Green, adjacent to the city of joining him Richmond, consented, after much importunity from her ance of a par husband Tucker, to join him in a sale of that property, lands, he in consideration of a positive verbal agreement and prom- would purise on his part, that he would purchase other land on cha Shockoe hill, build thereon, and convey the same to her build therefor the same estate she held in the Bowling Green; that on, and conshe accordingly did join in the sale of the Bowling to her, being clearly provGreen; and Tucker actually bought and built on a lot ed, and parton Shockoe hill containing two acres;-but died without ly executed, by her joinsettling the same on her according to his agreement. The ing in the prayer of the Bill therefore was, that the defendants deed, and his making should be decreed to convey the lot on Shockoe hill to the purchase and erecting other lands, vey the same the buildings, ought to be enforced in equity against his heirs; notwithstanding a great disparity in value between the lands so bought and sold; it appearing that, at the time of the marriage, the husband was very poor, and that all the real property in his possession, (except the land purchased as aforesaid,) was held in right of the wife. OCTOBER, the female plaintiff, or at least assign her dower therein. 1817. Gosden & V. Tucker's heirs. A joint answer of the adult defendants, admitted the plaintiff Mary's title originally to the Bowling green, and the sale thereof by Joel Tucker, in which she joined; but denied the agreement alledged in the Bill, which, however, (the plaintiffs having put that fact in issue by a general replication,) was fully proved by depositions. It also appeared by exhibits, that four acres of land in Duval's addition (the Bowling Green) were conveyed by Tucker and wife to James Thomson, for the consideration of 481., by deed dated June 26, 1800; and that, on the same day, Alexander MRae and wife conveyed to Joel Tucker the two acres of land on Shockoe hill, for the consideration of one thousand dollars. At September term 1809, Chancellor TAYLOR dismissed the Bill as to so much thereof as prayed specific execution of the agreement, but directed the plaintiff Mary's dower, in the lot bought of M Rae, to be assigned her by commissioners: and, at June term, 1813, it being admitted that her dower had been assigned in another suit, the bill was finally dismissed with costs. This Court granted the plaintiffs an appeal. Wickham for the appellants, contended that a Court of Equity will enforce a contract between husband and wife, founded on the consideration of her relinquishing her right to dower, or joining in a sale of her real property;— in like manner as if she were a feme sole. It has long (a) 1 Fonbl. been settled not to be necessary to interpose trustees. (a) 102-3; 3 P. The Court will set up the contract, tho' void at law. Slanning v. As to the agreement in this case, the testimony is clear; Style; Ibid and the Statute of Frauds does not apply, the contract v. Calmady, having been executed on one side. Wms. 337, 339, Calmady Leigh contra. The proof of the agreement, I admit, is sufficient; but the question is, will the Court enforce it? The property of Mrs. Tucker sold for 481. only; that afterwards purchased by her husband, was ten or twenty times its value. And that property, so much more valuable, is what she claims;-not to be paid her 481., with interest. Is this claim reasonable? Surely a more unreasonable one was never exhibited. The Chancellor did 1817. right in dismissing the bill altogether. I know of no in- OCTOBEH, stance of an executory contract, for a sale from husband to wife, being enforced in equity. Gosden & V. heirs. (b) Moore Freeman, Bunb. 105. Wickham in reply. All contracts are executory when first made.(b) Inadequacy of consideration is not suffi- Tucker's cient to vitiate a fair contract. Besides; it appears by the record, that the husband, in the present case, had not a shilling on earth but what he got by the wife. This circumstance repels the objection of hardship. The truth is, he chose to lay out her money for her benefit. It is not pretended that there are any creditors; and, if there were, their claims would not be affected by any decree between these parties. Judge ROANE pronounced the Court's opinion. On the merits, and as between the present parties, the Court is of opinion that the decrce is erroneous, and that the prayer of the bill ought to be granted:-but one of the defendants, the infant, has not answered the bill. For this cause, the Decree is to be reversed, and the cause remanded for farther proceedings. Jolliffe against Higgins. Decided Oct. 21st, 1817. 1. The payee of a draft the drawer IN an action of assumpsit brought by Robert Higgins against John Jolliffe, in the Superior Court of Frederick or order, purCounty, the declaration contained two Counts; the first porting to be for money special, on an order drawn by the defendant, August 15, lodged by 1810, on a certain Obed Waite, directing him to pay to in the drawthe plaintiff the sum of $108 85, "which the defendant ee's hands, belonging to "by the said order stated he had lodged in the hands of such payee, "the said Waite, and was the property of Major Higgins, may recover "(meaning the said plaintiff,) as guardian of his children by Mary Higgins, late Mary Jolliffe;" which order was drawee's refusing paydrawn for a good and valuable consideration, that is ment; (timely notice of such refusal of the draw er, upon the being given;) tho' such draft or order be not negotiable as a bill of exchange; being drawn on a particular fund,-not in favour of the payee "or order," nor in terms, "for value received." 2. A guardian may bring assumpsit in his own name, upon a draft or order payable to himself as guardian, for money due to his ward. 1817. Jolliffe V. be OCTOBER, "to say, for the payment of the said sum of money, "longing to the plaintiff as guardian aforesaid, and was ❝duly presented, on the 19th of August 1811, to the said "Waite, who, by his indorsement thereon, refused to pay "the same;" &c. The other was a general Count, for "money had and received by the defendant for the "use "of the plaintiff as guardian as aforesaid." Plea non assumpsit. Higgins. At the trial the defendant demurred to the evidence; the plaintiff having shown and proved to the jury the order, with the protest, or written refusal of Obed Waite to pay it; which, being set forth in hæc verba, corresponded with the description thereof in the declaration; and also proved that, at several times, in the fall of 1811, "and previous to the commencement of this suit, there "was notice of the protest given by the plaintiff to the "defendant, and a demand made of payment of the amount; "that the drawee was, at the time of the draft, and ever "since, a man of sufficient property to pay it, and of un"doubted solvency; and also that he had not, at the time "of the draft, or ever after, any fund in his hands, out "of which he ought to have paid the said draft, or any "funds of the drawer, whatsoever." The Jury found for the plaintiff $108 85 cents damages, with legal interest thereon from the 15th of August 1810, subject to the opinion of the Court upon the De murrer. The Court having entered judgment for the plaintiff, the defendant obtained a writ of Supersedeas, from a judge of this Court. Wickham for the plaintiff in error. Suit could not be maintained upon the writing in question, as a bill of exchange; it being drawn on a particular fund, and omitting the words "or order," which are absolutely necessa(a) Gerard ry.(a) Besides; our act of Assembly making bills nev. Lacoste, 1. gotiable, points out a particular form and mode of proDallas 194; Dawkes and test, which has not been observed in this case. wifev.De Locorrect in this, no action is sustainable on the first Count rane, 3 Wils. 213; Banbu- in the declaration. ry v. Lisset, 2 Stra. 1212. If I am 2. Whenever there is a demurrer to evidence, and it appears that the evidence applies to the defective Count 1817. only, no judgment can be given for the plaintiff. Here, OCTOBER, admitting the second Count to be a good one, there is no evidence applying to that Count. 3. If any person was entitled to sue, the children for whom Higgins was guardian, might, but not Higgins himself. Jolliffe V. Higgins. Leigh contra. I admit this order or draft is not a bill of exchange: but that question is important only where the negotiability of the paper is the point in controversy. Tho' not negotiable, it is binding between the parties to the transaction. The payee may recover of the drawer.(b) (b) 1 Ep. I admit too, that the non acceptance in this case, is not a legal protest; but that is unimportant. 2. The second Count is substantially good, and the evidence does apply to it; for a draft is, virtually, an acknowledgment that the drawer has money belonging to the payee. Even if the first Count be bad, it may operate as notice of the special matter intended to be offered in evidence upon the other. The general money Counts are inserted, on purpose to provide for the event of the special Count's being found defective.(c) N. P. 25. (c) 3 Term 3. When a writing is given to a guardian or executor, 182; 3 Burr. Rep. 174, he may bring suit upon it. So also may a factor. So, 1516, Chitty if an executor takes a bond for property of his testator on Bille, 191, sold by him, he may sue upon it and declare in the debet and detinet. Wickham in reply. A writing not under seal, does not in itself import a consideration. A note of hand, being not "for value received," may be given in evidence; but the consideration must be proved. If, therefore, this draft had been good in other respects, it could not support the action, no consideration appearing. Drawn, as it is, without the words "for value received," and not payable to the payee "or order," it may have been given for the purpose of getting the money of the drawer, for his own benefit, out of the drawee's hands. There is nothing to show that the payee is entitled to it.(1) Where the writing is only evidence of a debt due to the Ward, the suit must be brought by the Ward himself, (1) Note. The words of the order itself shewed it was drawn for money belonging to the payee, which the drawer asserted was lodged by himself in the hands of the drawee, 192. |