110 Va. 595 | Va. | 1910
delivered the opinion of the court.
Henry Johnson filed his hill in the Circuit Court of Warwick county, in which he shows that one hundred acres of oyster planting ground in James river were assigned by the oyster inspector to Broadfield, Gardner and himself, and that it was surveyed, platted, staked and recorded in the clerk’s office of the County Court of Warwick county, as required by statute; that they immediately entered into the possession of the ground and commenced to improve the same by planting oysters; that Gardner relinquished his interest to Broadfield and complainant, who remained in possession until by mutual consent they made partition of said land, each taking fifty acres thereof; that the fifty acres assigned to him has remained in his actual possession from such assignment and partition up to the filing of the bill; that he had recently learned that one Henry Michaux had had recorded in the clerk’s office of the Circuit Court of Warwick county a deed purporting to be signed, sealed and acknowledged by complainant, conveying to him (Michaux) complainant’s whole right, title and interest in said fifty acres of ground for the sum of two hundred and fifty dollars. Complainant alleges that he never “made, signed, sealed, acknowledged or delivered the said pretended deed to the said Michaux, and that the same, so far as it purports any signing, sealing or acknowledging by this complainant, is a forgery, and an attempted fraud upon the vested rights of this complainant and your complainant is advised will, upon proof of the facts hereinbefore alleged, be declared annulled, canceled and absolutely void and of no effect”; that “Michaux has, within the last few days, attempted and is now attempting to exercise rights of ownership over the said ground by taking oysters therefrom, to the wrong and irreparable injury of your complainant; he, the said Michaux, being wholly insolv
Michaux demurred to and answered this bill, denying all of its material averments, ánd gives the following account of the transaction: That complainant, on the 18th day of May, 1904, gave a deed of trust or mortgage on the property in question, to secure the payment of $250 to Jessie Taylor, which deed of trust was duly signed and acknowledged by Johnson, but was never recorded; that Taylor afterwards insisted that complainant pay the indebtedness, and offered to sell the same to respondent, who, after seeing Johnson, bought the same from Taylor, and on October 27, 1906, was given a deed of trust by complainant on the following property: “All that certain piece or parcel of ground consisting of one hundred acres, more or less, on the James river, staked off for oyster planting, near ‘Brown’s Shoals,’ in the county of Warwick, State of Virginia, with all of its improvements and oysters thereon, known as ‘Henry Johnson’s oyster ground,’ and including all property appertaining to the oyster industry, boats, oyster-tongs and all appurtenances thereto.” This indebtedness was evidenced by a note made by Johnson and endorsed by Taylor. This deed of trust,' though duly signed by Henry Johnson, was at Johnson’s request never put on record. It is averred that Johnson was in default in the payment of said sum of $250 to respondent, and while indebted requested respondent to pay off the taxes due upon said oyster planting ground, which respondent refused to do unless the matter was put in better shape than it Was at that time; that Johnson then agreed to give respondent a one-half interest in the property in settlement of said indebtedness, and with one W. J. Gordon came to the office of N. B. Clark, in the city of Newport News, and there executed the deed filed
Many depositions were taken on the part of both plaintiff and defendant; and' the case coming on to be heard upon the bill and answer, and the exhibits filed with them, and the depositions of witnesses, the court dismissed the bill, and the plaintiff applied for and obtained an appeal from one of the judges of this court.
The prayer of the answer that it might be treated as a cross-bill seems to have been disregarded by the court and the parties. It is certain, at least, that no answer to it as a cross-bill appears in the record.
The bill is exceedingly general in its terms. In the sixth paragraph the complainant alleges “that he never made, signed, sealed,. acknowledged or delivered the said pretended deed to the said Michaux, and that the same, so far as it purports any signing, sealing or acknowledging by this complainant, is a
We are of opinion that the paper writing márked Exhibit “A” and filed with the bill is not shown to have been procured by fraud. °
We confine ourselves strictly to the issue made, and express no opinion and decide nothing as between the Commonwealth and the parties to this controversy. In other words, the rights which Johnson had, whatever they may have been, in the twenty-five acres of oyster planting ground are vested in Michaux, but we say nothing as to the interest Michaux takes in those grounds as between himself and the Commonwealth.
The decree is affirmed.
Affirmed.