Lawrence v. Swann

5 Munf. 332 | Va. | 1817

January, 25th, 1817.

Judge Brooke

pronounced the Court’s opinion.

“ The Court, (not intending to decide that an Execution ought not to be served on property, the possession of which has passed from the debtor, and remained in a third person, for more than five years, in pursuance of a Deed, regularly recorded, and importing on its face to be for a valuable consideration, before such Deed has been impeached and convicted of fraud by the Decree of a Court of competent jurisdiction,) is constrained under the circumstances of the case before it, to withhold its opinion, and also its present impressions, on the merits; as well because Martha Hoops Syme, and the administrator de bonis non of Willis Riddick, whose interests are involved, are not parties to the suit, as because the whole of the case is not fully before the Court. Only one of the deeds to Wrarden is to be found in the Record of the suit of Syme v. Syme, referred to in the Answer, of Sarah Syme in this suit, and the object of that controversy being to perpetuate testimony, and it not appearing,in this case, that the witnesses, therein examined, were dead, or otherwise out of the power of the Court of Chancery, the question, whether their depositions (iu that event) ought to be read, is not regularly presented to the Court. But for these difficulties^ the Court (though strongly inclined to the opinion that it would have been more regular to have impeached the deeds in this case by a suit for that object, than to have levied an execution on the property claimed under them,) might have yielded to the desire of the parties, to put an end to a complicated and expensive suit. The Court, therefore, on these grounds, and because the delay will be not much increased by the institution of á suit, such as before mentioned, in which the party, if so advised, may contest the validity of the title of the Appellees, (as it regards creditors, or others, who may be made defendants to such suit,) not only to the slaves now in question, but to any other property, which may have belonged to John Syme the debtor, and which may be claimed by such defendants, so as to put an end to all farther controversy, affirms the Decree of the Chancellor,'’ but without prejudice to any such suit as before mentioned.”