82 Va. 827 | Va. | 1887
delivered the opinion of the court.
The bill was filed on the sixth day of February, 1882, by the appellant, to set aside as fraudulent a deed executed on the
The circuit court dismissed the bill as not sustained by the proofs; and a bill of review being tendered with new evidence,
The proofs in the cause showed that the original deed was a deed to John W: Miller in his own right, and for a consideration of $40,000, which was offered for record, but not recorded; that the new deed was changed as stated, before or at the tinre of the reacknowledgment, but it is not so clearly-proved that the appellant did not know of and acquiesce in the change.
The appellant had been cheated in May, 1877, and had brought his suit to correct the wrong in some way—how is not disclosed, as he never filed his bill. This suit had been dismissed, when in March, 1881, the new deed was brought by the commissioner for New Jersey to have it reacknowledged, so that it might be recorded. To this the appellant assented. And when, after bringing this suit, the appellant proceeded to prove his case, he introduces this New Jersey commissioner as a witness, who testifies that the appellant knew that the new deed was to Miller as trustee for his wife, and refused at first to acknowledge it on that account; saying that, as Mrs. Miller was dead, he did not think it looked right, and preferred to make a new deed to Miller, or to Miller as trustee for his wife’s heirs, and not to make it to Miller as trustee for his wife, as she was dead; that this proposition being submitted to Miller, he refused to accept of this deed to him, or to him as trustee for his wife’s heirs, and, after two or three weeks’ delay, the deed was .reacknowledged. The appellant in his deposition which (the court excluded) is not very clear upon this subject. He says, speaking of this interview with the New Jersey commissioner: “Further urgency of said Corson, and that no rights would be compromised, and particular examination of signatures, but not whole deed. He. did not acknowledge said signature as genuine.”
The first error assigned is that the court excluded the deposition of appellant upon the ground that Miller and wife were both dead, and that they were parties to the contract which is the subject of investigation. The appellant is expressly excluded by the terms of the statute. It cannot be successfully claimed that the commissioner who took the acknowledgment was the agent of the parties who were dead so as to bring the case within the exception of the statute. The statute provides : “ Or unless the contract or other transaction which is the subject of the investigation was made or had with the agent of the party so incapable of testifying, who is alive and competent to testify.” But the contract was not made with him. There is no evidence that he had any concern with it until the deed was acknowledged before him. It does not appear that he had any knowledge of it whatever. On the occasion of the reacknowledgment he appears to have been acting for himself, to correct his own error. The appellant himself says that he had “ repeatedly acted as his friend and counsel, and appeared with Taylor, a commissioner of Virginia, also his confidential business friend,” etc. There was no evidence that he was the agent of Miller, and none whatever that the original contract was made with him; and the appellant was incompetent to testify, and there was no error in the decree in excluding his deposition.
As to the ground of after-discovered evidence, there appears to be none in this case which can properly beso called, but the evidence set forth in the bill of review as newly discovered must appear to be material to the merits of the case, and not such as might have been discovered with ordinary diligence before the decree.
There appears to be no error in either of the decrees complained of, and the same must be affirmed.
Decrees aeeirmed.