*1 еspouse is limited to the The conclusion judge a has attended the
facts here: where
funeral of a murder victim who had been him, trial
known then over the presides murderer, despite specific
of the accused
request made before trial that he recuse
himself, explana- any and in the absence of calling judge.
tion for in another Since pleas
there were numerous common
judges Philadelphia who could han- case, practical justification
dled has shown, date, even this late
concluding injustice appearance
that arose in this case sufficient Indeed,
reason for recusal.4 based was,
record it I respectfully I believe and so
dissent. CO., Plaintiff,
CAPITAL INVESTORS Deceased, Frost, Harry
Norman B.
Dreisen, Appellees, OF the
EXECUTORS ESTATE OF
Arthur R. MORRISON, Appellant.
No. 75-1498. United Appeals, States Court of Widener, Judge, Circuit dissented Fourth Circuit. opinion. filed Argued Oct. 1977. Sept.
Decided 1978. agree majority practi- request cannot appropriate with the would be for counsel cal judge brought considerations should not affect the evalua- that an outside be in to hear appeal. practice particularly tion of this If no alternative exists to case. This is not uncom- continuing judge Pennsylvania, on as a in a mon in case where some nor has there been possibility exists, prejudice suggestion that it that course of creates undue inconvenience. may justifiable. possibili- action be Where the very hoped At the it least would be that a ty readily apparent- of bias is as avoidable it refusing would state reasons for re- ly here, justification for a refusal arises, possibility cuse when of bias in order hypo- recuse becomes far more doubtful. The practical that such considerations and circum- majority thetical situations envisioned may Moreover, weighed. judge’s stances be point. do not minimize this In the event explain refusal denial of motion to every particular might member of a trial court appearance recuse itself contribute to an thought given case, be judicial biased bias. *2 Rosslyn, in Bre- Virginia lands
ble contracted to County, Florida. He vard convey Capital lands to Investors those corporation wholly owned Company, shell $1,100,000represent- T. for by James of Mrs. ed unsecured notes. Because Virginia Morrison’s claims lands, renegotiated and a the contract affecting entered into new were issued to Virginia lands alone. Notes in the amount Mrs. Morrison Morrison and each, $100,000 was re- while Investors “clear the by Capital tained by relatively title” which encumbered compli- small of trust deed prior be a con- purported cated what another instru- veyance of the fee and ninety-nine purported ment which to be year lease. clearing the title to
In the course lands, judge required the district give deeds of trust Benn to the Morrisons There was default secure their notes. notes, Morri- Virginia lands at a repurchased sons foreclosure sale.
At
between
the time
the first contract
Investors,
Capital
Morrison
a deed
signed by
the Florida
conveying
(Echols
Joseph
Arlington,
B.
Va.
Hyman,
Investors,
return for
lands
Capital
brief),
Va.,
&
Hyman, Arlington,
Investors unse-
Capital
which he received
appellant.
$400,000.2
cured
amount of
notes in the
Ellis, Jr.,
(John
Lee
D. C.
Washington,
T.
that he could
persuaded
Benn
brief),
Beck,
C.,
Washington,
A.
D.
se-
Florida lands to
lawfully encumber the
appellees.
Capital
notes of
cure the
was uncleared.3
Investors beсause the title
HAYNSWORTH,
Judge,
Chief
Before
WIDENER,
held there was
Initially,
Circuit
the district court
and WINTER
At
part.
Benn’s
Judges.
no evidence of fraud on
time,
solely
with the
was concerned
PER CURIAM:
was no
and at the time there
lands
af-
diversity
of a number of transactions
appeal
This is
fifth
in this
evidence
Morrison,
jurisdiction
fecting
validity
Arthur R.
who
and the value
case.1
Later,
controversy
Investors.
after
engaged
in financial
with notes of
wife,
judge, it
full
district
estranged
was the owner of valua-
trial before another
Morrison to
opinions
reported
1.
3.
at 484 F.2d
There was a recorded deed
Our earlier
1972);
(4
1973);
(4
been a
1157 Cir.
of acquiring
action,
signed a re-
purportedly
Morrison
became,
were, or
notes which
thе basis of
Investors and Benn
acquitting
lease
intended
Benn never
which
and
worthless
any
Released
of all
him.
claims
schemes
complicated
kind of
paying. The
any pay-
lands and
claims to the Florida
in
are illustrated
engaged
in
he
release
notes. The
Do-Mor on its
ments
v. 5410
Judge Jones in Sankin
opinion of
Virginia.
in
and
was under seal
delivered
D.C.D.C.,
Corporation,
Connecticut Avenue
Morrison’s es-
court held that
The district
of
opinion
in the
(1968),
F.Supp.
con-
was no
there
tate had failed
In-
in Walsh v. Continental
Judge Fulton
release,
he concluded
for the
and
sideration
Underwriters, Inc., (S.D. of Fla No.
surance
binding.
that was valid and
63-576-Civ-CF, 1965)
opinion of
and in the
gave any
that he
testified
Benn never
(E.D.
of
Freehill
Judge Hoffman in
Benn
release. He
for thе
actual consideration
Va.,
1969).
capacity
He
No.
paid
given or
that he had
generally
claimed
business
sophisticated
of
even
persuading
though
$28,500,
some
Though Morrison
people
place their trust
him.
$4,000. The
than
legalisms.
testified it was no more
lawyer,
he
he dealt in
was not
“legal
pay
he
Benn
obligated
Morrison that
was
contract
He convinced
$25,000
living
did
for
year,
friend.
he
genius”
helping
What
a minimum of
and
however,
pattern
Morrison,
in the
were cleared.
was
titles
expenses,
until
he
When
court cases.
purportedly signed
in the
receipts
disclosed
produced
Benn
assets and
Capital Investors
in 1963 of
stripped
payments
cash
by Morrison for
pay-
use
$12,500
to his own
without
that,
them
was
$30,537, but,
devoted
Morrisons,
clearly established
he
ing
stock,
according
corporate
for
some
was
intention,
beginning,
$17,500
that his
Thus,
testimony..
Benn’s
the Morrisons.
pay
not to
for the
by Benn in
paid to Morrison
estate,
would have
real
judge was
Frost,
whom the
about
advances for Morri-
obligation to make
innocent,
entirely
concerned, was not
an
$25,000.
up
The
year
expenses each
son’s
deception. Several
unsuspecting
victim
August
release
dated
opin-
catalogued
for this are
reasons
any
date of
date to that
nearest
pages 1164
at
Defensively, suggested it is that under Virginia law the seal on release conclu- Here there proof any was no consid- consideration, sively imports at least when eration release.8 The the litigation original par- is between dates and the payments the amounts of however, ties.6 There are exceptions, when known, Benn claimed are made involved, different parties are possibly none them can be to the related release. when proceedings in equity, as these If paid, pittance all was it was a Surely, however, are.7 there is excep- an contrast to the claim released. release equity tion in when application purports claims, abe release of all strict perpe- rule the common law would though specific there is reference *5 injustice. trate a or grave Florida lands and the Do-Mor If notes. construed apply to to the Florida lands Cooper v. Gregory, 191 Va. 60 alone, the claim purportedly released was S. E.2d contingent the holders of remain $400,000. still for more than gross The ders under the will of purport their father disparity between the amount of the claim convey ed to a portion fee land in to any possible consideration the re- their sister in exchange promise lease makes enforcement the bargain another, care mentally incompetent, sis outrageously unconscionable. ter as as long incompetent The lived. agreement Apparently was under seal. artist, Benn experienced was an con once sister, lived, long as as she did take care of convicted of do not tax fraud. We know the incompetent, but after her death the he it, least, how did for a while at he but representatives of her estate declined to do seemingly persuade could Morrison to do so longer. grantors The purported anything persuaded wished. He Benn him land sought performance enforce Virginia to sell him the and Florida lands agreement sister’s estate of (he she had gave for unsecured notes Morrisons Supreme made. Virginia only Court of held a deed of trust on the lands the agreement Butzner, trial, despite unenforceable Judge because after the first First, seal. it purported was said that the required it). him do He persuaded Mor- grantors of the only contingent land had that legal rison there was some inhibition in long remainders it so as their mother prevented securing pay- Florida which lived, they power were without to make arising ment the notes out trans- conveyance. Moreover, said, valid it was fer of title to the Florida Benn had lands. if anything was conveyed, its value was placed representing so the certificate the stock Barbour, presence place 6. Norris v. Va. 334 51 S.E.2d 247, 8. The of the seal would (1949); Hall, go Turner v. S.E. 128 Va. burden Morrison to with forward evi- (1920). dence show the absence of consideration for release, but there is no absence evidence. got Morrison testified he more Inc., never than Storage See Branch v. Richmond Cold receipts and the show exact- (1926), 146 Va. 132 S.E. in which ly flatly what Benn claimed to have stated that the common law rule imports when. seal consideration is not the rule in equity. Neff, as will be Pennoyer v. eserow, treatment Company in Investors it on disagreement with apparent. My little some se- supposedly give Virginia precedent is self- little, failing to follow but precious he though it was curity, from this dissent. evident agree to re- Morrison to persuaded soon If Morri- agreement. lease of that escrow so release soon purported signed son this Benn, it is Neff, pre- v. Pennoyer
after the initial
respect
With
per-
mentions,
of Benn’s
majority
more testimonial
but one
panel,
vious
But it was the
so far
him.
for another trial
power
suasive
over
sent
case
this
back
concerned,
be-
power exercised
persuasive
kind of
and Dreisen were
same
as Frost
victims,
reported
parties to the adverse
as the
not
Benn over
cause
Nevertheless, de-
them.
cases show.
decision
attorneys asserting different
spite different
actual considera
there was
Since
view,
point of
a different
interests from
release, or,
any,
little
if
so
tion for
on “ear-
disposes of the case
now
release uncon
enforcement
make
conclusions, which had
findings and
lier
Cooper Gregory
scionable, we find under
While there
appeal."
been affirmed
should be
law the seal
under
taken,
evidence
have been
new
not
inval
declared
disregarded and
release
the district
presented
the evidence
id.
not
It
different,
denied.
and that
have converted
and Dreisen
Since Frost
matter,
but
not
included different
into
Do-Mor notes
ownership of the
their
of Frost and Dreis-
the view
presented from
now
land, the Morrisons
ownership of the
en,
the time
parties to the
case
resulting trust
have a
find to
now
adverse
an order
land and are entitled
very
reason for the rule of
binding.1
convey it to
requiring the defendants
Neff,
shall
Pennoyer
a man
However,
will be
defendants
them.
he
*6
him unless
judgment against
a
suffer
paid the
They
credits.
entitled
some
cause,
is violated
party
a
properly
pur-
had been
note which
Do-Mor
here,
attorneys
the
for
majority
for
the
they
Supposedly
Morrison.
chased Mrs.
protect-
interest in
party
some other
taxes,
may be
there
have
Rath-
Dreisen.
rights
Frost and
ing the
of
equitably
expenses which
items of
of
purposes
the
er,
served
should
have
a
recon-
the Morrisons
chargeable to
obligated
clients,
ethically
they were
their
hand,
the other
veyance of the land. On
appear in as bad
parties
absent
make
income.
they should be accountable
light
possible.
as
accounting and
some
will necessitate
This
today an-
court
I
the rule the
think
the district court.
proceedings in
further
evidentiary ba-
a new
requiring
nounces of
AND REMANDED.
REVERSED
a reconsid-
than
party,
sis
a new
rather
of the
light
in the
of the evidence
eration
dissenting:
WIDENER,
Judge,
Circuit
parties, does not
are
fact that there
new
logical or constitutional
opinion withstand either
the
because
respectfully
I
dissent
the evidence
of
give any
Reconsideration
analysis.
confessedly
does
panel
the
new
there were
fact
finding
light
of the
of the
fact
the
current
weight
the
judge
district
the
exactly
than
what
court;
not other
I think it does
district
fact are
did,
findings of
I
Neff, 95
think
v.
U.S.
Pennoyer
follow
formally
ifas
consideration
I think it
entitled
the same
(1877); and
24 L.Ed.
Merely
place.
first
parties in the
had been
Virginia precedеnt
departs from established
does,
first
stating,
panel
as the
disagreement
My
us here.
which controls
resulting
finding a
of decision
factual treatment
panel
on its
with
is no
there
because
be affirmed
with its
trust should
intertwined
the case is somewhat
proceedings.
earlier
and Dreisen from
point
absence of Frost
made
1. No
basis,
II
meaning no
evidentiary
new
addition-
evidence,
said,
al
I
is a
as I
think
year
For
time in
thirteen
the fifth
misapplication
Pennoyer
rule
case,
diversity
history of this
we consider
very least
require
Neff which
at the
should
relating
conveyance
issues
to a 1963 land
was,
of all the evidence as
reconsideration
between
R. Morrison and
Arthur
think,
judge.
done
correctly
by the district
Here,
Company
we
(Capital).
Investors
decision,
think,
panel
erroneously
ownership
most
with
directly concerned
estate,
from
shifts
burden
notes,
$325,-
of two
in the total amount
proponent,
its case as the
to the de-
proceeds
the balance of
to prove
fendants Frost and Dreisen
incor-
conveyance of
County,
land in Brevard
previous
findings
rect
fact
in a case to
Florida,
Do-Mor,
Capi-
from
Inc.
not parties.
pan-
That the
initially purchased
tal
the land from Morri-
el
clearly
just
decision
does
this is
shown
son, whose
claims the
*7
good
property.
title
the Virginia
to
Pursu-
Price,
Sign
Coke
& Coal Co. v.
2. Arthur Morrison died on 1 and He Mrs. Morrison were divorced 24. 9 0. 7 successfully that to establish considera- 29, stated The total July 1963. trust, previous con- as in the a constructive the same entitled to such tion was between the tract, divided over the inter- equally prevail to be it would claim that $100,000 be used to clear (with to Morrisons or the the notes Dreisen in est of Frost and appeared to title), but This, they say, be- land itself.6 Florida Virginia property. to the refer this case the last time cause we held were not dated June and Dreisen district court that Frost before us By order 29, 1965, simple fee title Do-Mor notes in due course holders ap- This Capital. in quieted property Commercial of the Uniform under 3-306 § property Florida directly concerns the peal Capi- from Code, the notes and hence took Capital to conveyed That land was alone.3 on the notes subject claims tal to all valid 18,1963, pursuant by May deed dated (4th Cir. against Capital. 484 F.2d 18,1963 On June contract. original May we remanded 1973). appeal, In the last realty Florida conveyed the Capital whether, as to determine the district releasing Do-Mor, which, Inc., in addition one hand between Morrison on purchase mon- $60,000, issued four trusts of other, Morrison Dreisen on the Frost and $400,000, amount of in the total ey notes trust to a constructive was entitled money mortgagе.4 by purchase secured question.7 two notes in of the Do-Mor and two mortgage That court held that the district On remand purchased by Nor- subsequently notes were proof meet its burden in 1965. the estate failed Harry Dreisen B. Frost and man Specif- trust. on the issue Capi- of Morrison claims The estate 1.1 million dollar found that ically, it notes as a constructive tal held the Do-Mor for both price was consideration purchase benefit in 1963 trustee for Morrison’s not for properties, unjust enrich- Capital’s account of The district alone. Virginia property conveyance of Flori- in the initial ment necessary it was held that estate were able court also Capital.5 da If the land $700,000 themselves. sold for litigation initially which was institutеd 3. This deficiency Virginia proper- quiet title to the executors obtained today way $400,000 ty. judgment issues we decide arise for about filed Morrison in 1965. counterclaim 1971. Following 3 and Do-Mor; 6. default on notes Do-Mor’s $25,000, paid by for 4. Note No. on the Florida Frost and Dreisen foreclosed $50,000, sold to Mrs. Morri- Note No. purchased property, at the foreclosure subsequently paid Frost and was son having part, ownership *8 judgment that denied a court’s 1972 the district purchase price of in excess far from the equitable of trust on the basis constructive forms one one million dollars. This default law, favoring Frost and principles of real estate claim of Morrison’s executors’ the bases good purchasers no- without faith Dreisen as trust on the to a constructive entitlement by held that the case was controlled tice. We They ground Capital’s unjust enrichment. provisions deal- Uniform Commercial Code the conveyed the Florida land was also claim that negotiable ing purchase instru- the with say consideration because without 29, ments. applied only July agreement 1963 Virginia property superseded the earlier and 1971 court’s We also held the district that undeniably pertained agreement to both pre- that opinion, in which executors Morrison’s Virginia lands. claim, and not their trust vailed in constructive noteworthy quite controlling the Morrisons not It that and were since Frost Dreisen of trust litigation obtained deed foreclosed on later parties tо the at that time. 1970, property in on the held 660 clearly court was trust trict not erroneous in fraud before constructive and imposed finding
should be that the estate failed that the sale Florida land of proving to meet its fraud on the supported by burden valuable consideration. owner part Capital. While that, compels the This conclusion absent concededly Morrison never received full fraud, unjust there was no enrichment by Capital notes on the issued case of law as a matter sufficient purchase price, to the extent those notes justify a constructive trust. There was at merely gen- were Morrison unsecured damages, amost basis for a suit for and this pay- eral creditor with claim claim, existed, if it ever is co-extensive with prose- ment of the notes which has been $400,000 judgment already obtained in cuted to a conclusion. against Capital by 1971 Morrison’s estate upon Morrisons’ foreclosure purchase money notes. Ill 18,1963, May pursuant The contract of The that estate claims the district agreed convey Flori- requiring proof committed of fraud error da property, recites a consideration for the It establish a constructive trust. asserts conveyance dollars, of 1.1 million remedy that the constructive trust can be of a judgment payable form note within considerably administered with more flexi- percent five years bearing six interest.9 bility, specifically unjust where enrichment law, matter As a of basic contract mutual The district demonstrated. court stated promises constitute a valuable consideration that of a trust basis constructive “[t]he Adams, Payne a bilateral & contract. fraud, constructive,” cases, citing actual or Co., Preserving Gleaves v. Indiana Wood and imposed upon appellant the burden 18,154 (1930); 155 Va. 558 Bernstein v. S.E. of proving fraud “clear convincing Bord, 698, 670, 146 Va. 132 S.E. 699-700 Sutton, 179, evidence.” 194 Sutton Va. (1926). That the executed and *9 capital 9. Morrison also took all of the stock of Capital in escrow as collateral to secure the purchase price.
661 past the fifteen life over ties from Beim’s Virgin- the price purchase found province pass be our years. It not 1.1 should together was рroperties ia and Florida life,12 to review Benn’s judgment on agreement dollars, July that the million conclusion court’s whether the district con- the earlier reaffirmed particu- respect to erroneous with clearly words of the finding, in the This veyance. it I conclude that 1963. lar of land in sale court, beyond “is established oral- Morrison testified Benn and was not. interpretation The district court’s doubt.” Butzner, found no who Judge ly before transaction, was intended that it July evidence Judge found no fraud. Kellam necessary secure Mrs. solely to I finding. do Judge Butzner’s it after obligations of fulfilling in cooperation clearly are erroneous. think contract, displace that and not to May 52(a). FRCP rec- by the amply supported is agreemеnt, ord. view, then, case, my in is left of the What in taken consid- in which notes a situation rely estate to for Morrison’s order paid. were not for the sale land eration arms-length an contract upon the breach of by fraud The transaction was untainted trust, it is for a constructive basis consideration. supported by a valuable prove breaching party that the necessary to taking a Nothing prevented his contractual perform never intended the real purchase money of trust on deed may con- which obligations circumstance —a pur- security estate as proving It had the burden stitute fraud. to take the price agreed as he chase convincing evidence. fraud clear theory simply seсurity. There is stock as 183, 748, 40 S.E.2d Davis, 185Va. Malbon v. debt pay under which a mere failure found that (1946). 187 The district justify imposition can had been of evidence particle” “not a Paradise, 57 299 U.S. McKee v. trust. fraud since presented by appellants (1936); Cherno 75 81 L.Ed. S.Ct. Butzner, sitting as a dis- Judge when Corp., 353 F.2d American Mercantile Dutch case, conclu- in came to the trict this (2d 1965); see Porter Shaf- 154 Cir. July nor the May sion that neither (1926). fer, Were 147 Va. 133 S.E. pro- conveyances were 1963 contracts and its effect would prevail, rule to contrary Thus, two dis- fraud.11 cured actionable prefer- be to create an unwarranted often pro- in hearings judges, trict after full general over in of one creditor ence favor litigation, have re- history tracted of this MсKee, p. 57 S.Ct. U.S. others. jected Capital commit- the contention that 124. in transactions Morrison. ted fraud in statements have examined the IV panel Benn’s intended to establish opinion holding, ground for its note that an alternate (meaning Capital), and As fraud exe- upon a release unsavory activi- the district court relied largely of a list of consist finding present Frost are finding and Dreisen Judge of no fraud Butzner’s 11. While guilty finding Capital, part court in bound that Benn was affirmed (4th 1966), may judica- fraud, activity, F.2d 462 Cir. res or like a case in parties. ta on that issue those who were not estoppel proceeding, or work situations, necessary not find it would p. listed on None of Benn of the activities similarly rely principle nor on that opinion, еxample, even to which Morrison result of a suit remotely issue connected to the transactions held, party apparently after the was a panel fact for its relies on them here. conveyance Capital, further that he had no perhaps finding. I think it is error with in the Florida land. But reliance interest exception of tax a criminal conviction sole finding by Judge Butzner credibility, going and even that in 1963 in a case in which free of fraud spelled out. logical party me was a much more than *10 662 evidence, 6, 1963, Prima facie August Virginia, on
cuted Morrison re- shifts forward with the evi- going Benn from burden leasing Capital and all claims Merricks, 70, dence, 168 Witt 210 Va. v. arising proper- out the Florida of the sale (1969). It is evidence which on S.E.2d 517 ty. Appellants seek avoid the effect appearance its first is sufficient to raise a unsup- that by arguing release it was presumption of fact establish the fact consideration, ported by notwithstanding question imports It that unless rebutted. receipt it acknowledges of valuable being the evidence for the time a produces consideration and was executed under seal. may certain result but the result law, Under a sealed instrument Miller, 372, repelled. v. 192 64 Babbitt Va. generally conclusively imports consideration (1951). S.E.2d 718 13 so far as the Here, Woody rigidly, the rule of applying Barbour, v. concerned. 188 Norris Va. conclusively the release under seal would Hall, 51 (1949); 334 Turner v. S.E.2d 128 against establish Morrison’s consideration (1920); Va. 104 861 see S.E. North But, assuming argument estate. even Cohen, western v. Nat’l Ins. 138 Va. Co. estate had Morrison’s some kind (1924); 121 S.E. Ferries Co. equity place position it in the of those in Brown, (1917). Va. S.E. Cooper sought Norris and who to avoid While not necessarily this rule does obtain seal, effect of imported by consideration a fraud, when the is attacked instrument seal es- instrument under nevertheless equity and it will is true that look to the prima tablished facie evidence of considera- substance the form a rather than trans court, correctly, tion. The think fraud, prevent Cooper action to see v. held that estate Morrison’s had failed 24, 60 Gregory, (1950), 191 Va. S.E.2d 50 consideration, there executors, with the burden of furnishes an con- additional reason for its them, prоducing evidence failed to finding clusion. supported Its is show that obtained the release in record. manner, or fraudulent indeed that the re here, majority a case in way irregular. lease was in any The dis person who has executed release under trict court’s conclusion the release was died, seal has wrongfully places the burden supported by valuable consideration is in proof claiming those release law, accord with applicable is based on facts valid, claiming rather than those the release supported record, clearly and is not invalid, legal exactly proposition think 52(a). erroneous. FRCP contrary precedent established on the very point. Schaаf, The case Woody 106 Va. (1907), very nearly S.E. 807 indistin-
guishable on from the case its facts at hand.
There, obligation given an under seal for an
antecedent debt was issue after
death of the of the obligation. maker that, against held the maker’s es-
tate, the seal was conclusive evidence of the
debt, and, insurance company
involved which was defending on the
ground policy maker’s life was
wager policy, prima facie evi- seal
dence. died, party g., Cooper,
13. When
be relaxed.
has
the rule
See e. Norris and
infra.
notes
gate
produce
the issue if
addi-
securing
could
mortgage
000. The
tional relevant evidence.
those
Do-Mor notes has now been fore-
Price,
Company
Stonega
Sign
See
Electric & Power
Coke
&
Co.
Coal
NLRB,
(4th
1942),
(4th
1940).
Notes
estate
notes
finding,
not that the
beneficiary of a constructive trust.
erroneous,
clearly
but that “he
required
before
issues
us are whether the dis-
adhere to his earlier
and conclu-
clearly
trict court was
erroneous in finding
sions.” P. 655.
(1)
supported
that:
valid consideration
Along
line,
thing
another
men-
neеds
sale
land from Morrison
Florida
panel
tion. The
relies on “law of the case”
Capital, (2) Capital, through
owner,
its sole
to require “adherence
finding
to” the fact
James T.
was not guilty of fraud in
previous to the time Frost and Dreisen were
purchase
Morri-
property
parties to the case. P. 654.
I do not
son,2
(3)
release
executed by Morrison
agree for I do
previous
not think
fact find-
respect to
arising
with
all
claims
out
ing can bind
person
party
who is not a
supported
sale
property
the case to
his detriment
context
by valid consideration.
presented here
very
absent at the
least a
18, 1963,
On May
into
entered
complete reconsideration of the
as a
record
contraсt
for the sale
lands
plus
whole
opportunity
present
evi-
Arlington County, Virginia,
located in
dence after the absent defendant
is made a
Florida,
County,
Brevard
for the stated con-
party to the case.
$1,100,000,
conveyance
sideration for the
Finally, the majority
cites
Elec-
paid by “judgment
was to be
note.”
NLRB,
tric & Power
Co.
F.2d
Complications ensued, however, that threat-
(4th
1942),
Cir.
aff’d 319 U.S.
63 S.Ct.
ened to prevent
conveying
Morrison from
(1943),
notes satisfied appeal concerns the sale. Dreisen. This sale, $225,000 $100,000 least, proceeds Morri- 3 and of notes respectively. apparently claim either now executors son’s standing place property itself as occurred that default 5. The record clear defiсiency notes, still ow- or the benefit of by Capital the notes issued Virginia ing by Do-Mor. properties. claims and Florida $28,500; paid as much reversed in this case most recent decision Our receiving more than about denies figures —both
notes
deliv-
Davis,
72
(1952);
S.E.2d 275
Malbon v.
185
by Capital
ered
for the
748,
(1946).
Va.
40
183
S.E.2d
purchase price to
constituted a
There are
statements
conveyance
consideration for the
and a le-
cases,
court,
sug-
relied
gally binding obligation needs no further
gesting that
of a
either
or breach
elaboration than reference
the Morrisons’
requisite
imposition
fiduciary duty is
on
obtaining
foreclosure
those notes and the
of a
trust.
Miller v. Interna-
deficiency judgment by
of a
Morrison’s es-
Workers,
tional
Brewery
Union оf
187 Va.
tate.
889,
(1948);
Shaffer,